THE SUPREME COURT
Appeal No. 223/2014
Denham C.J.
Hardiman J.
Charleton J.
Thomas Talbot
Plaintiff/Appellant and
Hermitage Golf Club
The Golfing Union of Ireland, and Eddie Murphy
Defendants/Respondents
Judgment delivered on the 9th day of October, 2014, by Denham C.J.
1. I agree with the judgment to be delivered by Mr. Justice Charleton, both the reasons given and the order proposed. Charleton J. has pointed out that delivery of this judgment today will constitute the 83rd day that the resources of the High Court and the Supreme Court have been directed towards this claim. There are some observations that I wish to make regarding case management.
2. The traditional practice in common law legal systems was that it was the parties and their lawyers who set the pace of a case. The courts did not intervene by actively managing the progress of the litigation process. This approach reflected the dominant laissez-faire attitude of the nineteenth century.
3. However, with the growth in the volume of litigation and the increasing complexity of cases, it became apparent that judges presiding in the courts must begin to proactively case manage cases and adopt case management practices and procedures.
4. Case management in civil litigation was developed in England and Wales in the mid 1990s. In Ireland an early initiative to introduce case management began in June 1996 by way of a High Court practice direction concerning personal injuries actions in which liability was not in dispute.
5. The adoption of case management in England and Wales came to the fore when the then Master of the Rolls, Lord Woolf, submitted two reports entitled Access to Justice, Interim Report, to the Lord Chancellor on the civil justice system in England and Wales (June 1995) and a Final Report (July 1996). Lord Woolf observed that:
“Case management…involves the court taking the ultimate responsibility for progressing litigation along a chosen track for a pre determined period during which it is subjected to selected procedures which culminate in an appropriate form of resolution before a suitably experienced judge. Its overall purpose is to encourage settlement of disputes at the earliest appropriate stage; and, where trial is unavoidable, to ensure that cases proceed as quickly as possible to a final hearing which is itself of strictly limited duration.”
6. There is also jurisprudence of the European Court of Human Rights on the effect of Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms, and this has impacted on the traditional approach in common law jurisdictions, where the parties controlled the movement of a case through the courts system. Article 6.1 provides that:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”
7. The European Court of Human Rights has heard a number of cases concerning delays in disposition of cases by national courts. In Buchholz v. Germany [1981] ECHR 2, it found that:
“...the Convention places a duty on the Contracting States to organise their legal systems so as to allow the courts to comply with the requirements of Article 6 par.1, including that of trial within a ‘reasonable time.’”
8. When considering how proceedings before all civil courts in Germany are governed by the principle of the conduct of the litigation by the parties, the Court considered that such factors:
“do not dispense the judicial authorities from ensuring the trial of the action expeditiously as required by Article 6.”
9. Similarly, in Price and Lowe v. the United Kingdom [2003] ECHR 409, the Court found that:
“a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings does not dispense the State from complying with the requirement to deal with cases in a reasonable time.”
10. The European Court of Human Rights has consistently repeated that sentiment in other cases where there has been delay. See for example the cases of Mitchell and Holloway v. the United Kingdom [2002] ECHR 818; and McMullen v Ireland [2004] ECHR 404.
11. Irish jurisprudence is also relevant. This Court stated in Gilroy v Flynn [2004] IESC 98 at paragraph 13 that:
“comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end.”
12. We have now reached a position in Ireland where as Mr. Justice Hardiman explained in Cruise v Judge O’Donnell [2007] IESC 67:
“We live in an era of case management, when a serious attempt is being made to deal with all litigation, civil or criminal, in an efficient manner.”
13. The use of judicial case management is crucial to the effective conduct of litigation, including where litigants are unrepresented by lawyers. This approach helps to define the key issues and to clarify the responsibilities between the parties. It enables managed use of limited court resources. It can assist by making the case more understandable for all those concerned, and may facilitate an early settlement between the parties.
14. Further, case management assists a court in determining a case within a reasonable timeframe. This is important for all parties in an action.
15. In this case the appellant filed very comprehensive written submissions which the Court received. However, he insisted on reading them out to the Court, and objected to questions from the Court. This is inconsistent with the proper conduct of appeals where full written submissions have been filed. The main purpose of an oral hearing is for the Court to seek and obtain clarification on the submissions.
16. The learned High Court judge took great care to hear and determine the issues raised by the appellant. I agree with Charleton J. that the conduct of the learned trial judge was exemplary. However, I consider that the Courts would benefit by a further development and use of case management so that the best use may be made of scarce court resources for the benefit of all litigants.
Judgment of Mr Justice Charleton delivered on the 9th day of October 2014
This is an appeal from the judgment and order of Herbert J dated the 27th July, 2012, [2012] IEHC 372, wherein he dismissed the plaintiff/appellant’s claim for damages against the defendant/respondents for defamation and for conspiracy. The plaintiff/appellant Mr Talbot represented himself at all stages and the notice of appeal is wide-ranging. In essence, every finding of fact of the learned trial judge is disputed by Mr Talbot. He pleads that there was evidence that he was defamed as to the integrity of his golf handicap. He claims that a conspiracy to destroy his character was effected successfully by a combination of all of the defendant/respondents, the Hermitage Golf Club, its handicap committee member and chairman Eddie Murphy and the Golfing Union of Ireland. In the result, he claims that he had to forego membership of Hermitage Golf Club, a privilege that he had enjoyed for 50 years. During the years 2001-2003, Mr Talbot believes that he had uncovered sharp practice in terms of finance and also waste of resources at Hermitage Golf Club. It was because, he says he believes, of the risk of him drawing that to the attention of the wider membership of the club, and outside the club, that the alleged conspiracy formed. Apart from what was alleged on the pleadings, he made allegations of malice, fraud and theft during the course of the hearing. There was not the slightest evidence to support any such allegation. In addition, Mr Talbot claimed that he had been maliciously prosecuted. There were no proceedings of any kind, civil or criminal, taken against Mr Talbot by any party to this appeal. Probably, Mr Talbot believes that he was maliciously persecuted. Only defamation and conspiracy are before the Supreme Court in this appeal. In addition to his disputation of the findings of law and fact of the learned trial judge, a general claim has been mounted by Mr Talbot that the trial was unsatisfactory.
Facts
Mr Talbot joined Hermitage Golf Club on 11th February, 1962, some 40 years before the series of incidents that he complains of. On retirement from work and finding himself with more time, he travelled around Ireland and submitted to the handicap sub-committee of the Club several score cards during the years 2002-2003. Adjustments are made on analysis of relevant returns such as these by this committee. This resulted in multiple adjustments of his playing handicap upwards and downwards. Adjustments are notified to the player. Mr Talbot challenged the changes to his handicap in correspondence from May to July 2003. Some of his remarks were taken exception to. At the handicap sub-committee meeting of 30th April, 2003 an apology from Mr Talbot was noted in the following terms:
Eddie Murphy read out an apology from Tom Talbot to the Hon Secretary for his delinquency in writing to individual members of the handicap committee with his complaints under handling of his handicap revision in 2002. The committee unanimously accepted the apology but stated they would not like a repeat of the incident.
With the submission of further scorecards from Mr Talbot, the handicap sub-committee met again in relation to his handicap on 30th July, 2003. The following was noted in the minutes:
Thirteen further cards received from Tom Talbot - clearly for handicap building purposes. It was agreed that these would be placed through his handicap details and then cut back to thirteen. This was done and a note left for him to play off thirteen. A printout of his handicap details was also made available for Mr Talbot.
On the facts as accepted by the learned trial judge, these minutes were typed by Dick Clery who was a member of the handicap sub-committee but he had not attended this meeting. A note was then left in the clubhouse for Mr Talbot attached to the notice board of the men’s locker room. This note was sealed and dated the same day. Mr Talbot claims to have retrieved it only a month later and to have opened it discovering to his horror that he was being accused of cheating at golf. The relevant part of the note simply states that Mr Talbot was a “playing member of Hermitage Golf Club” and that his current handicap was 13. The note is signed by Eddie Murphy, as chairman, and underneath the signature and date he also wrote the words: “General Play (Handicap Building)”. Mr Talbot was not at all happy at this situation.
The minutes, the learned trial judge accepted on the evidence, were kept secure in the clubhouse in the men’s competition room, to which only the members of the sub-committee have access. Only Mr Talbot opened the note. No one outside the committee prepared either the minutes or the note. At that time, however, from April 2003 the club was engaged in computerising its records and among its most important records are those of the handicap that members are playing off. A computer firm called Genesys was engaged in designing the relevant software. The learned trial judge was satisfied that communication of a terse note as to Mr Talbot and his handicap, containing the words “handicap building”, was published to some anonymous computer programmer working for that firm. A notice to vary judgement was filed by the defendants/respondents. The argument advanced is that there was no publication to anybody outside the sub-committee and that the learned trial judge had erred in holding that any reference to Mr Talbot and handicap building had come to the attention of anyone in the computer firm. This is not accepted. In the first place, on the transcript of the hearing it is not at all clear as to who did the computer programming or when that was entirely finished. Secondly, it is not credible to believe that the learned trial judge was not aware of patching and updating of computer programs which, of necessity, requires access to the program at later dates by such a specialist.
On 8th November, 2004, Eddie Murphy drove into the car park of the Hermitage Golf Club and noticed Mr Talbot speaking to another member. He apparently turned in the direction of Eddie Murphy and said “It’s that f- -ing idiot there”, or words to that effect. Eddie Murphy replied that he hoped that the comment was not addressed at him; to which Mr Talbot is supposed to have replied “Put it in writing and I will see you in court.” This incident later resulted in a disciplinary hearing at Hermitage Golf Club and the result was the suspension of Mr Talbot from the Club for three months. The suspension of a member, the learned trial judge noted, had only happened twice in the previous 40 years and then for serious incidents involving the abuse of club property and for singing songs with inappropriate words “in mixed company”.
On 10th December, 2004, the annual general meeting of Hermitage Golf Club took place. This was a heavily attended gathering as it was a matter of considerable interest to members. Mr Talbot was at that meeting fortified with notes that were produced on this appeal. He gave the learned trial judge a very full account of what he said there. He insisted in reading out his notes at the trial. Among the items debated at the meeting was a report from the captain. One of the items was new members. The captain proposed that in order to protect the integrity of membership in the Club “a system of interviewing prospective candidates” was to be “added to the screening process.” To this, apparently, Mr Talbot added his own spoken observation. He testified at the trial about his contributions to the meeting and he also asked numerous questions about this meeting of other witnesses. At trial he also recited from his notes and so what he said at the meeting was likely to be similar to the note produced in court, and on this appeal, which read:
I hear money on the table over the odds is the accepted way of breaching proper determination of membership to Hermitage. This started in 2001 evidenced by subscriptions and entrance fees exceeding budget by 201,597 for year ending 30/9/02… This [proposal] is hypocritical in the extreme. This year entrance fees… are conveniently transferred from income to capital account: the start of a nimble concealment process.
People found this upsetting. This was not his only intervention. On an anodyne proposal to re-elect the auditors, Mr Talbot objected. According to his own note, he said:
In fact we don’t need outside auditors to simply rubberstamp what is presented to them for one reason. We are tax-exempt and we somehow produce more accountants here than any other walk of life that can rubberstamp saving us €9,000 annually.
When there was angry reaction, according to his own note, Mr Talbot records himself as saying: “It must be just the accountants who were muttering impieties.” He then accused a solicitor of being present for the purposes of “camouflage” and, according to some of the evidence at the hearing, also launched a verbal attack on bankers but, according to other evidence, he may have criticized lawyers. Perhaps it was both. On the evidence before the learned trial judge, there was audible disquiet from those at the meeting at Mr Talbot’s interventions. In the aftermath, three people wrote to Eddie Murphy, this time in his capacity as the honorary secretary of the Club. Since these letters are central to the allegation of conspiracy, they must be quoted. The first was dated 16th December, 2004 from a member called Gerry O’Donnell and read thus:
I am writing to protest in the strongest possible manner about the behaviour of our member Mr Tom Talbot, at last week’s AGM of the Club. The non-stop barrage of abuse, discourtesy, incoherence etc was totally unacceptable and most insulting, not alone to the officers and to the various committee members but also to the general body of members. The outgoing and incoming captains showed enormous patience and forbearance in their efforts to facilitate free-speech but Mr Talbot crossed the line to such an extent, on this occasion, that I feel the time has come when serious consideration will have to be given to preventing any re-occurrence in future. Several members mentioned to me that they had points to raise, as would be normal at any AGM but were so disgusted at Mr Talbot’s performance that they refrain from saying anything at all. This is not good for our Club and I earnestly request that the new officer board and/or Executive Committee will give this letter appropriate attention in due course.
A further letter dated 18th December, 2004 was received from Seán Óg Ó Ceallacháin, another member, in these terms:
May I add my voice to those with similar views in condemning the disgraceful behaviour of Tom Talbot at last Friday’s… AGM. I do so in case there is any softening of committee attitude towards member Talbot on the grounds of ill-health. I have not witnessed a worst display of ignorance and bad manners in my 51 years membership of the club. His insulting behaviour towards outgoing captain Tony Hatton and incoming captain Andy Brennan during the course of the meeting was not alone inexcusable but totally unacceptable for a club of Hermitage’s stature. There is no case here for leniency of any kind in dealing with Tom Talbot over his conduct last Friday night. His comments regarding the club’s auditors were disgraceful but to apply them also to the Hon Treasurer Fergus Malone was beneath contempt. Tom Talbot’s track record at Hermitage either at an AGM or EGM levels in recent years, and again last Friday, cannot be allowed to go unpunished. I would point out that member Talbot is already under a cloud over two recent incidents involving the club Hon Secretary and a prominent member of the Leinster Branch of the GUI, serious matters in themselves. How many more instance as the club to endure before positive action has to be taken. Can I conclude by stating, if Tom Talbot is not seriously and severely dealt with under the present rules on discipline and behaviour or other relevant rules, he will only be encouraged to mount similar attacks in the future, thus setting a dangerous precedent. I will be satisfied to accept any punishment imposed by your committee.
The last letter written by a member was from David Cullen and was dated 11th January, 2005:
As a result of one of Tom Talbot’s contributions at our Annual General Meeting, I was moved to check the amount of the GUI levy. At €15, or a little over 1% of my total bill, it is insignificant and indeed represents, contrary to Tom Talbot’s tirade, excellent value, given the amount of work that the GUI undertakes to administer the game at all levels. In addition, Tom Talbot’s request to re-write minutes, failure to heed the chairman’s requests for quiet, general truculence and indeed his criticism of member accountants and lawyers were all unbecoming. I feel compelled to let you know my views, and would wholeheartedly support the committee in any action it deems necessary to take, to curb this behaviour and ensure the proper conduct of future meetings. While this is not the only recent incident of former officers acting in an aggressive manner at meetings… to have the AGM ‘hijacked’ by someone who sadly has some form of agenda, ruined the event for others.
The suspension which followed the car park incident and the hearing that was conducted at Hermitage Golf Club in relation to the annual general meeting are not germane to this appeal.
The Golfing Union of Ireland, or GUI, regulates this sport in Ireland. There were two audits in consecutive years of the handicapping system by the Leinster branch of the GUI. These happened to cover the 2002 and the 2003 playing seasons. The learned trial judge accepted evidence from John Ferriter, which was backed by evidence from Seamus Smith, both of the GUI, that any decision to audit and the result of any such audit were taken entirely independently of Hermitage Golf Club. In particular, the learned trial judge accepted that no golf club can call for itself to be audited. Furthermore, the nature of the audit may involve persons from the GUI who are also members of the club being audited. The reason for this is simply to save time and travelling expense. There is no stipend involved in this voluntary work. Mr Talbot believes that these audits occurred for the purposes of whitewashing the malicious work of the handicap sub-committee. The evidence at trial was, however, to the effect that the general system was what was looked at and not individual handicap scores. Mr Talbot’s handicap would have been of no interest to the GUI. Furthermore, reasons were given at trial as to why audits could take place in consecutive years and these related to such matters as success in competitions.
Following a hearing in the Supreme Court on 29th February, 2008, Mr Talbot was ordered to list each and every document which he claimed defamed him; to produce copies of each of such documents if requested; to state to whose attention these documents came; and to state the nature of the conspiracy he alleged, listing each and every act known to him which he alleged was done in pursuance of the conspiracy. In addition to the handicap certificate that mentions “handicap building” addressed to Mr Talbot of 30th July, 2003 and the three letters of complaint following on the annual general meeting of 10th December, 2004, two other documents were referenced in clarification of the defamation allegation. The first is a letter dated 14th May, 2007 which was addressed by John Corcoran, the honorary secretary of Hermitage Golf Club, to all members and headed “High Court Action”. This read:
Members should be aware of a High Court action being taken by a member of the Club, Mr Tom Talbot, alleging defamation and other ‘torts’ against Hermitage Golf Club, the Golfing Union of Ireland and Eddie Murphy. The Club is defending the action and lodged a defence on its own behalf and on behalf of Eddie Murphy on 30th March last. In addition, the Club has appealed, to the Supreme Court, a decision by a High Court judge not to oblige the Plaintiff to reply to a request for particulars in relation to the claim. Members will be kept informed of developments.
The second of these documents was a circular from the same source, wishing everyone a happy Christmas and “good golf in ‘08” that was circulated some time around 26th November, 2007. In part, this predominantly jolly communication read:
In my letter of 14th May, 2007 I drew the attention of members to the High Court action being taken by Mr Tom Talbot alleging defamation and other ‘torts’ against Hermitage Golf Club, the Golfing Union of Ireland and Eddie Murphy. As indicated that Club lodged its defence in this action on 30th March. The case continues and I will keep members informed of developments.
In addition to those listed documents, letters from the GUI as a result of the handicap audit conducted in 2003 and 2004 were introduced in evidence. In reality, they say nothing about Mr Talbot, comprising measured and very dry technical communications about handicapping. Mr Talbot also produced a letter, which he said was from his brother. He did not call his brother. The letter was dated 17th May, 2006 and this in part, read:
Recently, I spoke to a friend of mine in Cavan who is involved in the Golfing Union of Ireland and he asked me had I a relative named Tom who played golf in Hermitage. When I said I did he told me that you were taking legal action against Hermitage and the GUI over your handicap. Is this true?
There was also considerable dispute at the trial, none of it germane to any of the issues, about clause 19 of the ‘The Standard Scratch Score and Handicapping System’ of the Golfing Union of Ireland. In reality, that rule, for good or bad, applied to all affiliated clubs and to Mr Talbot as well. Any claim of unfairness by Mr Talbot in that regard is completely hollow.
These are the basic facts in respect of which the trial took place over 20 days in the High Court. There was much other correspondence which was referenced at the trial and on this appeal, including a solicitor’s letter on Mr Talbot’s instructions to Hermitage Golf Club and the reply, and several other documents. These are not germane either. At the trial, Mr Talbot insisted on calling every witness, including ones who clearly were not likely to be helpful to his case because they had a contrary account of events, for example Eddie Murphy. These were examined and cross-examined by him, sometimes at astonishing length and in a bewildering fashion.
Boundaries to an appeal
The learned trial judge listened with obvious attention and great patience to Mr Talbot and to every witness that he called. This Court on appeal does not have that advantage. Instead, Mr Talbot addressed the appeal by way of the recitation of facts and documents over approximately five and a half hours, reading from a pre-written submission that already had been furnished to the Court and insisting that no questions should be asked of him. In Hay v O’Grady [1992] 1 IR 210, the issue arose as to whether Article 34.4.3º of the Constitution, in conferring appellate jurisdiction on the Supreme Court, mandated or required an appeal by re-hearing to substitute facts found by the trial judge with the view of the facts to which members of the court might come on reading the transcript. In the view of the Supreme Court it did not. McCarthy J set out three principles which were established in existing case law but which, because of the clarity of his expression, have been often repeated since. The principles are as follows (at page 217):
1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of the transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes LJ in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v Macken [1899] 2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or a recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
In reviewing any appeal, the Supreme Court is required to analyse the law to see whether it was correctly stated and correctly applied to the facts found by the judge of trial and is required, in addition, not to interfere with findings of fact where credible evidence support same. On matters of inference, an appellate court is at large and is regarded as being in the same position as the trial judge where inferences are drawn from circumstantial evidence. Where inferences depend upon oral evidence, the trial judge is regarded as being in a better position than the appellate court and such findings should generally be left undisturbed.
Defamation
The law on defamation was stated with admirable clarity and concision by the learned trial judge. The common law definition of defamation provides that defamation consists of words or actions which lower a prospective plaintiff in the eyes of ordinary right-thinking persons of the class to whom the communication is addressed; Quigley v Creation Ltd. [1971] IR 269 at 272. It is the effect of the words that gives rise to tortious liability. The intent of the person communicating does not alter their defamatory meaning. Unintentional defamation may otherwise be provided for in a statutory defence, as in an unintended reference to a person of the same name, but that is not relevant to this definitional element. Words must be looked at as regards two elements: what the words mean in themselves; and at what meaning the hypothetical ordinary, reasonable and well-informed person without any special knowledge would draw from those words; Lewis v Daily Telegraph Limited [1964] AC 234 and Griffin v Sunday Newspapers Limited [2012] 1 ILRM 260 at 267. It is for the trial judge, as a matter of law, to decide whether words are capable of bearing a defamatory meaning and it is for the jury, or the trial judge if the case is tried without a jury, to say whether in fact the defamatory construction should be put on the words according to their fair and natural meaning as would be given them by a reasonable person of ordinary intelligence without over elaboration or searching for some hidden or obtuse sense; McGrath v Independent Newspapers (Ireland) Limited [2004] 2 IR 425. Alleging that a prospective plaintiff was, for instance, seen leaving a particular address at a particular time might not on the face of it be defamatory, but the notoriety of such place as, for instance as a bordello, might allow extrinsic facts to be pleaded and proved that established the defamatory effect of otherwise innocent words. To be defamatory, words must be published to at least one other person beside the prospective plaintiff. A person may whisper abuse in to the ear of another without liability, or loudly condemn a man to his face while both are alone in a boat on the high seas, but communication to even one other person establishes the element of publication necessary in the tort. Mere vulgar abuse is not enough. There must be something in the words that communicates an undermining of the credit or reputation of a prospective plaintiff. Once the plaintiff has shown the matter complained of to be defamatory, the law presumes the statement to be false. If a defendant claims that the statement was true and raises a defence of justification, then the burden of proof is on the defendant to establish the truth of the statement.
Proof that defamatory words were published may be defended where the person who makes the communication has an interest or duty, legal, social or moral, to address it to the person to whom it is made and that person has a reciprocal interest or duty to receive such information; Henwood v Harrison [1872] LR 7 CP 602 at 622. Actual malice, meaning an improper motive for the communication, which arises naturally where the person disseminating the words knows them not to be true, defeats this defence of qualified privilege. An inference of malice is rebutted prima facie from a statement that attacks the character of a prospective plaintiff where a situation of privilege is proven and thus requires the plaintiff at trial to show that the communicator of the statement was motivated by personal spite or ill will; Wright v Woodgate [1835] 2 CMR 573 at 577 and Harris v Arnott (No 2) [1890] 26 LR Ir 55. The law presumes that communications on an occasion of privilege were believed to be true. This is rebutted by proof of malice. Malice is shown where a plaintiff at trial proves that the defendant did not honestly believe the truth of what was communicated or was indifferent to its truth or falsity; Horrocks v Lowe [1975] AC 135 at 149-151.
All of the above was recited and ostensibly applied in the judgment of the learned trial judge. As a statement of the principles underpinning the law on defamation over more than a century, it is unimpeachable.
The learned trial judge’s findings were based on a solid foundation of fact. None of the witnesses called by Mr Talbot agreed with any allegation of malice, ill-will, spite or conspiracy that he put to them. On the contrary, there was abundant evidence that no-one in Hermitage Golf Club could ever have been motivated by anything other than disappointment. A striking incidence of this occurred on the evidence of Andrew Brennan, who had been vice-captain of the Club in 2004, captain in 2005 and vice-president in 2006. He was asked by Mr Talbot as to why a new standing order had been brought in following the annual general meeting in 2004 concerning the conduct of meetings. Mr Talbot put it to him that this was done in order to interfere with democratic rights; and in particular his. He answered:
Well, firstly I would say… that that was inserted following … receipt of legal advice given the disruption that you primarily had caused at many earlier meetings. Now it would not be normal but it was deemed to be a requirement for the orderly running of meetings. Now, for whatever reason, you seem to have a persecution complex and at the earlier part of the meeting in question I think if I could remind you, and it is clearly in the minute, you had requested that the minutes of the prior year, 2003, be totally rewritten in that they were inaccurately recorded. This was put to the floor by the captain and the chair, Tony Hatton, and you were the only single dissenting person.
When asked directly by the learned trial judge whether this standing order had been brought in to get at Mr Talbot, the witness answered:
Your Honour, under no circumstances. I mean this is a persecution complex. I did not bring it in. The committee of Hermitage Golf Club took appropriate legal advice to deal with a single difficult member, Tom Talbot, many of whom - many of us had been friends with him for years. There is no indication of vendetta [or] conspiracy. I mean this is not a secret society as Mr Talbot knows, or Tom knows, and you are not dealing with the Teamsters Union. As far as I’m concerned, we [took] legal advice and meetings had consistently run out of control and other members had objected clearly to the way the meetings were being run and being hijacked candidly.
On the issue of publication, the learned trial judge decided that there had been publication of the “handicap building” note to a computer programmer from the Genesys firm. This finding was based upon solid evidence, and referenced the minutes of the handicap sub-committee minutes and other evidence, of 23rd October and 28th November, 2002. His finding was as follows:
Finally, in the minute of the 2nd April, 2003, it is recorded that, “a representative from Genesys recently provided training on the handicap system to committee members”. Eddie Murphy, the third defendant, was chairman of the handicap sub-committee in the year 2002 and in the year 2003 and Dick Clery was a member of the sub-committee in both years. The third defendant gave evidence that since in or about 2001 it was a requirement of the second defendant that complete details of the handicap of each member of the Club be entered on the computer record. The plaintiff does not have to prove that the defamatory words were actually seen and read by a particular third party. If, on the evidence adduced, it is a reasonable inference that this occurred, a prima facie case of publication will be established. From these minutes of the 23rd October, 2002, and 28th November, 2002, I am satisfied that it is reasonable to infer that the defamatory words were published to an employee or agent, employees or agents of Genesys and, though it is unnecessary to go this far, also to some member or agent of the second defendant, by the members of the handicap sub-committee of the Club including the third defendant.
This finding on publication is soundly based. On defamatory meaning, the learned trial judge held that the words “handicap building” were defamatory. On this appeal, that finding has not been seriously disputed. The relevant rule applied by the handicap sub-committee was clause 19 of the ‘The Standard Scratch Score and Handicapping System’ of the Golfing Union of Ireland, in the form relevant from 1st January, 2001. This requires the handicap sub-committee of a golf club to reduce a member’s handicap “by not less than one whole stroke” where the handicap is “too high and does not reflect his [or her] current playing ability”. The finding of the learned trial judge was made thus:
I am satisfied that the words “Handicap Building” are fairly capable of a construction which would render them defamatory. I find as a fact that this construction ought to be attributed to them in the circumstances of this case. I am satisfied that any hypothetical, ordinary, reasonable and well informed member of the class of persons interested in the playing of the game golf would reasonably and fairly conclude from these words that the addressee was being accused of consciously and deliberately inflating his playing handicap so as to give himself an unfair and improper advantage against other players by misrepresenting his true playing ability. I find that the words “Handicap Building”, written by the third defendant and recorded in the minute of the meeting of the handicap sub-committee of the 30th July, 2003, in their natural and ordinary meaning meant that the plaintiff was cheating at golf. I do not accept the construction contended for by the first and third defendants that the words meant only that the plaintiff’s playing handicap had automatically built up by reason of the operation of Clause 16.3 of the Scheme on the large number of score cards he had returned and consequently needed to be adjusted downwards under the provisions of Clause 19.1 to reflect his current playing ability. I do not accept that a hypothetical reasonable member of the class of persons interested in the playing of the game of golf would reasonably put such a construction on these words.
What then came into focus was the occasion and motivation for the publication. The learned trial judge held that this very limited communication to the computer programmer was on an occasion of qualified privilege. His finding was as follows:
Even where a plaintiff proves that defamatory words have been written and published of and concerning him, there are occasions, in the public interest where the law relieves a defendant from what would otherwise be the consequences of that publication. Such [an] occasion … arises where the person who makes the communication has an interest, or duty, legal, social or moral to make it to the person to whom it is made and that person has a reciprocal interest or duty to receive it. … The third defendant and the other members of the handicap sub-committee of the Club clearly had no moral, social or legally enforceable duty to make this communication to any employee or agent of Genesys. This leaves the issue of whether he or they had an interest to make the communication and whether Genesys had a reciprocal interest to receive it.
The evidence established that there are over one thousand members in the Club and that the handicap sub-committee was solely responsible for ensuring that the playing handicap of each such member was constantly reviewed and validated in accordance with the requirements of the Standard Scratch Score and Handicapping System then in force. The work of the sub-committee was subject to random audit by the second defendant. In the performance of this exacting and onerous task, the handicap sub-committee needed to constantly refer to the individual records of each playing member of the Club. The evidence established that a failure on the part of the handicap sub-committee to carry out their task efficiently and accurately could result in serious consequences for the Club, including the suspension or loss of handicaps so that members could no longer participate in the game of golf within the CONGU system.
In these circumstances I find that the third defendant and the other members of the handicap sub-committee had a reasonable and a genuine interest in seeking out the computer software system which they considered was best suited to assist them in their task. For this purpose, the third defendant and the other members of the handicap sub-committee of the Club had an interest in communicating with Genesys and, having chosen that particular system, he and they had an interest in ensuring that a complete and accurate database was set up. This, as the minute’s record, necessarily involved transferring all existing handicap details of members, including the details relating to the plaintiff, to this new system.
This finding was supported by evidence. There was no evidence that malice attended this communication and the dry circumstance of the computerisation of necessary records would make any such idea very unlikely. There is no basis on which the careful findings of fact of the learned trial judge could be interfered with on appeal. The manner in which the learned trial judge found from the confused abundance of evidence that there was no basis upon which any possible claim of defamation could be made by Mr Talbot demonstrates his scrupulous fairness in conducting this trial.
Other documents were claimed to be defamatory. Among these were the three letters about the annual general meeting of 10th December, 2004. The letters are quoted above. They speak for themselves. The facts of the meeting and the evidence of several witnesses, among them that of Andrew Brennan quoted above, who had witnessed the situation tended to the same effect; that the entire incident was unfortunate but that it was also unacceptable. It is not defamatory for someone to be responded to with complaints where they make allegations at an important club meeting. Such complaints are expressions of opinion. Nothing in the three letters attacked the credit or reputation of Mr Talbot. All they said was that the interventions should not have happened, certainly not in the form in which they occurred. The learned trial judge also held that the occasion on which the letters had been written and the limited audience to which the letters were addressed was on an occasion of qualified privilege. Before the learned trial judge and on this appeal, Mr Talbot claimed that by mentioning or inferring in the complaints that he was suffering from illness meant that he was insane. A reference to illness occurs in the letter from Seán Óg Ó Ceallacháin. The text of the relevant letter, however, can be read only as suggesting that excuses for such conduct as had occurred at the meeting should not lightly be accepted. This reading was the entirely sensible approach of the learned trial judge. On the issue of these letters, his finding on defamatory meaning and on privilege was thus:
When these words, “on the grounds of ill health” are considered in their context, the only natural and ordinary meaning to be placed upon them is that the Executive Committee of the Club should not deal leniently with the plaintiff even if he should make the case that he was suffering from some health problem on the 10th December, 2004. Conversely, Mr. Cullen seems to be considering that the plaintiff’s conduct at that Annual General Meeting on the 10th December, 2004, was so extraordinary that he may have been suffering from some health problem. I find that these words were not defamatory of the plaintiff. Even if they were, I am satisfied on the evidence, that each of these three members of the Club had a separate interest in making their complaint and the third defendant had a reciprocal interest in receiving that complaint so that occasion of publication was one of qualified privilege. I find that the plaintiff adduced no evidence of any malice on the part of any of these three members towards him other than to suggest that they wrote the letters at the instigation of the third defendant, with a view to having him expelled from the Club. I have already found that this did not occur. Further, I find that there was no unconnected or extraneous material in any of these complaints such was would negative the privilege. In addition, Mr. O’Donnell, Mr. Ó Ceallacaháin and, Mr. Cullen were not joined as defendants in this action. I am satisfied on the evidence and I so find, that none of these three letters nor the statement of Mr. David Cullen was libellous of the plaintiff.
The legal analysis of the occurrence of an occasion of qualified privilege is unimpeachable. In a similar way, Mr Talbot was offended by the letter dated 14th May, 2007 addressed by John Corcoran, the honorary secretary of Hermitage Golf Club, to all members and by the circular of some time around 26th November, 2007.
It is clear that the members of an unincorporated association have an interest in whatever litigation may burden the property that is held in contract of membership between them. This litigation has been long and expensive. It also has resulted in Mr Talbot making very serious and derogatory comments about a multiplicity of officers and members of Hermitage Golf Club and a range of other people. None of these were anything other than unsound. Mr Talbot’s comments were made on an occasion of absolute privilege in court and were related to the litigation and so were not actionable. To this allegation was added the hearsay account from Mr Talbot’s brother. This did not constitute a proven statement, much less defamation. Nonetheless, the learned trial judge facilitated the allegation by allowing it to be made as part of the general case on the letter and the circular by treating it as another letter. The learned trial judge dealt with the matter thus:
Mr. John Corcoran is not a defendant in this action. There is no repetition or republication of the alleged libels or any part of them in either of these documents, nor, did Mr. Corcoran make any comment whatsoever with respect to them. These documents published by Mr. Corcoran impute nothing more to the plaintiff than that he has taken a High Court action against the first defendant, the second defendant and, the third defendant for defamation and other torts. In my judgment, it is not defamatory of the plaintiff to publish that he has taken such action and, that it is being defended, where there is no reference whatsoever, either directly or indirectly to the basis of the claim. I am also satisfied that the publication of these documents does not amount to a republication of the original defamatory words by reference. In my judgment Mr. Corcoran, as Honorary Secretary of the Club had an interest in communicating this information, and perhaps even a duty to communicate it, to the members of the Club. They as members of this incorporated association which might have to indemnify the third defendant in respect of any award of damages made to the plaintiff against him or, might themselves have to meet that claim should the assets of the Club prove insufficient for the purpose, had a reciprocal interest to receive that information. No evidence whatsoever to establish malice on the part of Mr. Corcoran was offered by the plaintiff during the course of this action. The fact that these documents probably led to a certain amount of speculation by members of the Club as to the nature of the plaintiff’s claim does not amount to the publication of a libel which is the essence of the actionable wrong.
It is impossible to fault the learned trial judge in his analysis of the law and there is nothing in his application of that law to the facts that could be regarded as in error or as being unsupported by evidence. Instead, it is clear that there was an abundance of evidence upon which each such careful finding was based.
Conspiracy
If two or more people combine together and pursue by agreement an unlawful action, whether civil wrong or crime, this is an unlawful conspiracy. In Iarnród Éireann v. Holbrooke [2000] IEHC 47 (Unreported, High Court, 14th April, 2000) O’Neill J, having considered earlier authorities, held that the following essential features of the tort of conspiracy had been established:-
1. The agreement or combination of two or more people, the primary or predominant object of which was to injure another is actionable even though the act done to the party injured would be lawful if done by an individual.
2. An agreement or combination of two or more persons to carry out a purpose lawful in itself but by using unlawful means is actionable, in circumstances where the act in question might not be actionable against the individual members of the combination, as individuals.
All agreements to do something unlawful either as the end object or the means are actionable conspiracies. A further specific observation needs to be made: while an agreement to do something unlawful, whether by object or means, is a tort, liability was also influenced by centuries old notions that people are entitled to combine for their own interests even with the object of undermining the business or interests of another person. Thus, where two or more persons determine to further their own interests to the detriment of another, but do not pursue unlawful action thereby, this combination is not actionable. Such just cause or excuse for all lawful actions of those in the agreement renders the combination lawful. The boundaries of that exception have been eroded as regards economic activity, however, by Articles 101 and 102 of the Treaty on the Functioning of the European Union and by the national legislation in the form of the Competition Acts 2002 - 2012.
Nothing beyond the basic definition of civil conspiracy is relevant here. Mr Talbot put his allegation of conspiracy on a multiplicity of factors. These included three letters of complaint following upon the annual general meeting of 10th December, 2004 which Mr Talbot alleges were directed by officers of Hermitage Golf Club; that the Golfing Union of Ireland conducted audits in 2003 and 2004 in order to “whitewash” what Mr Talbot regarded as the attack on him; that everything that was done as regards his handicap was for the purpose of giving him “an evil reputation as regards handicaps”; that the Golfing Union of Ireland was somehow in collusion with Hermitage Golf Club; that solicitors letters emanating from Hermitage Golf Club and from John Ferriter of the Golfing Union of Ireland showed collusion; and that disciplinary proceedings were initiated against him for improper reasons. All of this is extremely hard to follow and even harder to accept.
Following on from a hearing in the Supreme Court, on 29th February, 2008, Mr Talbot was directed to state precisely what overt acts he alleged in pursuance of the conspiracy against. He pleaded three factors:
1) Aforementioned GUI notices confirming audit meeting cooperation and assistance on the occasion of reviews authorised by GUI handicap convener.
2) The aforesaid three letters [from Messrs O’Donnell, Ó Ceallacháin and Cullen], that came about [by] design to collude in injuring me.
3) The collusion in both John Ferriter, GUI 5th June, 2005, and Ian O’Herlihy, member of and solicitor to Hermitage and Murphy 3rd June, 2004, coming to exactly the same conclusion and explanation.
The learned trial judge found that the complaint over the incident in the car park was neither actuated by malice nor inspired by any other party than the one complaining. The learned trial judge found that the three letters following on the annual general meeting of 10th December, 2004 had been written by the writers spontaneously and entirely of their own volition. The learned trial judge held that the audits of the club by the Golfing Union of Ireland in 2003 and 2004 were decided upon, initiated and completed by that body without any involvement whatsoever from any member of Hermitage Golf Club. The evidence from John Ferriter of the Golfing Union of Ireland was that he was entirely and completely unaware of any dispute between Hermitage Golf Club and Mr Talbot. Furthermore, he knew nothing about any belief that Mr Talbot might have had as to whether certain projects were costing too much money. The learned trial judge held:
I am satisfied on the evidence that there was no conspiracy of any sort to injure the plaintiff between the third defendant and any other member of the first defendant and the second defendant or any council member, officer or agent of the second defendant including Mr Ferriter, Mr Fintan Buckley and Mr John Joe Maher.
All of these findings were overwhelmingly supported on the evidence. Further, there is no evidence that anyone wished for any detriment to Mr Talbot, much less tried to set about damaging his legitimate interests.
Entitlement to jury trial
Mr Talbot has complained on appeal that a judge and jury should have tried his case.
An allegation of defamation on its own is tried by a jury. Here, as the learned trial judge patiently explained on many occasions to Mr Talbot, it was he who insisted in joining on the tort of conspiracy to his defamation claim and in so doing joined the Golfing Union of Ireland as the party with whom Hermitage Golf Club and its handicap sub-committee chairman Eddie Murphy were allegedly, as he put it on this appeal, “in collusion” to damage his interests. In terms of what is now before this Court, a notice of trial was served by Mr Talbot on 27th April, 2007 for trial by judge and jury. After a hearing before McMahon J in the High Court, by order dated 1st November, 2010, that notice of trial was set aside on the application of the Golfing Union of Ireland. It was also ordered that any further notice of trial provide for the proceedings against the Golfing Union of Ireland to be determined by a judge sitting alone and for the defamation and the conspiracy proceedings against all defendants to be heard together. This order was not appealed. On a motion before Ó Néill J on 14th March, 2011, on the application of Hermitage Golf Club and Eddie Murphy, it was ordered that the issues between Mr Talbot and those parties be heard before a judge alone and tried together with the action against the Golfing Union of Ireland. That order was not appealed.
Trial by judge sitting alone was thus appropriately ordered and not appealed when the matter came on for trial before Herbert J on 13th December, 2011.
Conduct of the trial
A multiplicity of complaints were made by Mr Talbot about the trial, about the trial judge, about counsel for the defendant/respondents, about a particular registrar of the High Court and about previous rulings of the Supreme Court. Condensing the submissions to what is relevant here, the plea is that the trial was unsatisfactory. There is no basis on which it could be claimed that the trial before the High Court was unsatisfactory. Mr Talbot insisted on calling every witness. He must have known that each such witness would not help his case. Perhaps, one cannot know, he felt that by asking them questions somehow the case that he wanted to emerge would come out. That did not happen. Parties are not entitled to cross examine witnesses that they have called themselves. Nonetheless, very wide latitude was extended by the learned trial judge with exemplary patience. The conduct of the trial was such that no reasonable person could have imagined that the court was intent on any other exercise than the most complete analysis of the facts. In many other ways, the learned trial judge sought to assist Mr Talbot as an unrepresented litigant.
The learned trial judge, for instance, held that the non-identification of the database of golf handicaps by Mr Talbot should not prejudice his case. Had Mr Talbot been a represented litigant it is more than doubtful that such latitude would have been given. Another striking instance is the inclusion for analysis of a letter from Mr Talbot’s brother referencing a comment by another person. This instance of dúirt bean liom go ndúirt bean léi demonstrates not that the learned trial judge elided the hearsay rule but that the learned trial judge was determined to deal with every single issue raised by Mr Talbot. The learned trial judge expressed his attitude thus:
Throughout the hearing of this case many pleading issues arose in which counsel for the first defendant and third defendant objected that matters were being canvassed by the plaintiff and evidence was being led by him which fell outside the parameters of the pleadings in the case and especially outside these schedules. However, conscious of the fact that the plaintiff is a litigant in person and drew his own pleadings, and, mindful of the reproach of Lord Diplock in Boston v. Bagshaw [1966] 1 WLR 1126 at 1135 that “lawyers should be ashamed that they have allowed the law of defamation to have become bogged down in such a mass of technicalities…”, I determined, in the interests of justice, to permit very considerable latitude to the plaintiff in making his case. I allowed this latitude to the plaintiff provided he did not depart altogether from what he had pleaded and so long as I was fully satisfied that the defendants were not thereby prejudiced in dealing with the evidence or in making their defence.
This was not only a transparently just approach but it also had the hallmark of temperate case management.
Court resources
As the Chief Justice points out in her judgment, with which I agree, the delivery of this judgment will constitute the 83rd day that the resources of the High Court and the Supreme Court have been directed towards this claim. This was, in essence, a very simple case: was it defamatory to say of an amateur golfer that he was “handicap building”; was that statement published to anyone other than the maker of the statement and the subject of it; and if yes was the answer to these two questions, was publication on an occasion of qualified privilege not undermined by malice? The conspiracy claim was also straightforward. Complication is perhaps inherent in the law of defamation; a matter remarked on by the learned trial judge who quoted from Lord Diplock in Boston v Bagshaw, as noted above. Focus, however, is far from impossible even in the most difficult case. The plaintiff/appellant Mr Talbot pleaded this case himself without legal counsel or assistance over 20 days in the High Court. Numerous motions were brought to the High Court either by him or by the opposing parties. Several appeals were heard by the Supreme Court. The necessary observations which follow on what the Chief Justice has said are a criticism of no-one.
Among the unenumerated rights in Article 40.3 of the Constitution is the right to have access to the courts for the purpose of litigation. This was described by the Supreme Court in Tuohy v Courtney [1994] 3 IR 1 at 45 as “the right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law.” The resources of the courts are there for litigants. Those resources are not, however, unlimited. No litigant is entitled to more than what is reasonably and necessarily required for the just disposal of a case within the context of the other demands on court time. Whether it is an unrepresented litigant or not, the resources which the courts decide to assign to a case must depend upon: the importance of the legal issues involved; the gravity of the wrong allegedly suffered by the moving or counterclaiming party; the monetary sum involved; and the public interest in the outcome of the case. Courts are entitled, and indeed are required, to foster their resources. This is both a matter of public and private interest. Court resources used in litigation are funded by public money. In addition, the parties pay for legal representation. Litigants should not be faced with cases that are longer or more expensive than they need to be for a fair resolution. In many instances, costs if awarded against a losing party may not be recovered. In that regard, putting reasonable limits on submissions in terms of time and allowing a measured number of hours or days for each side to litigate their case is both right and appropriate. The calling of repetitive expert evidence may and should also be curtailed. Many motions can be brought in apparent aid of certainty as to nature of each side’s case. This needs to be vigilantly watched by the courts. The Rules of the Superior Courts are there to aid in the just disposal of litigation and are not to be over-used in such a way as to overwhelm the central core of what a case is actually about. Clear focus on that is required from the start; IBB Internet Services Limited and Others v Motorola Limited [2013] IEHC 541 (Unreported, High Court, Charleton J, 19th November, 2013) at paragraph 3 refers.
There can be problems beyond what are usual in litigation. Where a lay litigant is involved, pleadings may be confused. Traditionally, in every court, judges have done all that they can constitutionally do to assist. It would help in many cases, both with lay litigants and in complex cases where the parties are represented, for a case management hearing to take place before a judge who, after hearing the parties, can have the parties agree the issues for trial or can set these. This can avoid the unnecessary use of discovery and particularisation as the judge may then and there make such orders as are necessary for the just disposal of the case. The core purposes of case management are that it allows the court to focus on necessary issues and to set fair limits as to the resources of the courts that can be allocated to litigation.
Result
In the result in this case, the conduct of the learned trial judge was exemplary; his summary of the law was unimpeachable; his findings of fact were in each case supported by more than ample evidence; and I would dismiss this appeal.
|
