THE SUPREME COURT
Appeal No. 2009/282
MONICA LEECH
PLAINTIFF/RESPONDENT
AND
INDEPENDENT NEWSPAPERS (IRELAND) LIMITED
DEFENDANT/APPELLANT
Judgment of Ms. Justice Dunne delivered on the 19th day of December, 2014
This is one of two appeals in respect of the litigation between the parties. Both appeals were heard on the same day. This appeal is brought on behalf of Independent Newspapers (Ireland) Limited (hereinafter referred to as the Newspaper) from the order of the High Court made herein on the 24th June, 2009 in which the plaintiff/respondent (hereinafter referred to as Ms. Leech) was awarded the sum of €1,872,000 by way of damages for libel together with an order for costs made herein on the 26th June, 2009.
Background
Ms. Leech in these proceedings sought damages for libel arising out of a series of articles in the Evening Herald newspaper owned and published by the Newspaper between the 30th November, 2004 and the 17th December, 2004. Ms. Leech instituted proceedings against the Newspaper on the basis that the articles in their natural and ordinary meaning meant that she was having an extramarital affair with Mr. Martin Cullen who was then the Minister for the Environment. Prior to the commencement of the proceedings, Ms. Leech worked as a Communications Consultant advising the Office of Public Works and subsequently, the Department of the Environment. Mr. Cullen was a junior minister in charge of the Office of Public Works and, subsequently, between 2002 and 2004 he was the Minister for the Environment.
The trial of the proceedings took place before a judge and jury over seven days and at the conclusion of the evidence the following questions were put to the jury:
“1. Did the articles mean that the plaintiff had an extramarital affair with Minister Martin Cullen?
2. Did the articles mean that the plaintiff had travelled to New York with Minister Martin Cullen for a United Nations Conference and failed ever to attend it?
If the answer to questions Nos. 1 and 2 is “No” proceed no further.
If the answer to questions Nos. 1 or 2 is “Yes” assess damages.”
The jury brought in a verdict having answered the questions as follows:
“Question 1: Yes.
Question 2: No.
Damages: €1,872,000.”
Accordingly, judgment was entered for that amount on the 26th July, 2009 and it was further ordered that a sum of €750,000 on account of the damages awarded and the sum of €100,000 on account of the costs awarded be paid forthwith and a stay was granted in respect of the order in the event of an appeal together with a stay on the payment of the sums of €750,000 and €100,000 until the 31st July, 2009 or until further order.
The appeal
The Newspaper has appealed from the judgment and order of the High Court made herein and the notice of appeal sought inter alia:
(1) An order directing a re-trial in the High Court on the issue of damages. The appeal in that respect was grounded on the following basis:
“The damages awarded against the defendant/appellant were of such a level that no reasonable jury could award and/or were disproportionate to the damage caused and/or constitute an unlawful interference with the defendant’s rights under the Constitution and/or under the European Convention on Human Rights.”
Complaint was also made as to the decision of the learned trial judge to direct the payment out of the sum of €750,000.
Scrutiny of the award of damages by a jury
This is a case which pre-dates the enactment of the Defamation Act 2009 which introduced new provisions, inter alia, in relation to damages particularly, in relation to the directions to be given to a jury by the trial judge in respect of a trial in the High Court and the matters to which regard shall be had in assessing damages. Prior to the 2009 Act, the trial judge was limited as to the directions that could be given to a jury on the subject of the quantum of damages. The assessment of damages was and remains a matter entirely for the jury but by virtue of the provisions of the 2009 Act it is now possible for the trial judge to give more detailed directions to a jury as to the assessment of damages. The position was different when these proceedings came to trial before the High Court. It is not suggested that there was any error on the part of the trial judge in his charge to the jury on the question of damages. Rather the complaint made is that the award of damages made herein is so disproportionately high that it ought to be set aside. However, it is important to point out that the fundamental task of this Court on an appeal from the verdict of a jury on the basis that the damages awarded were excessive, remains the same.
The parties in their respective submissions have both referred to a number of the same authorities in which the difficult question as to the assessment of damages in defamation actions has been considered. The first of those is the Supreme Court decision in the case of Barrett v. Independent Newspapers Limited [1986] I.R. 13. A passage from the judgment of Henchy J. in that case (at page 23) has subsequently found approval in a number of other decisions and for that reason it would be helpful to refer to the relevant passage in full. Henchy J. stated:
“In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts as found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case, and any other matter which bears on the extent of the damages. The judge, quite properly, in this case told the jury to ignore all matters in the article save the allegation of an assault. Also, quite properly, he told the jury that they should not allow their assessment of damages to be affected by the fact that the plaintiff had agreed to donate the damages to charity. Indeed it is right to point out that no criticism was made at the trial by either side of any part of the judge's address to the jury.
The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader's success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”
Subsequently in the case of de Rossa v. Independent Newspapers Plc [1999] 4 IR 432, Hamilton C.J. having quoted that passage commented:
“This passage emphasises:
(a) that it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of;
(b) that it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered; and
(c) that if the award is disproportionately high, it will be set aside and not allowed to stand.
The obligations arising from the provisions of the Constitution and the Convention are met by the law of this State, which provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.”
One of the matters at issue in that case was the question of whether or not guidelines should be given to the jury as to the level of damages awarded in other libel cases and in relation to the level of damages in personal injuries cases but the Supreme Court in de Rossa rejected the suggestion. Counsel on behalf of Ms. Leech laid particular emphasis on a passage from the judgment of Hamilton C.J. (at page 462) where he stated:
“That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.”
It was stated by Finlay C.J. in the course of his judgment in Barrett v. Independent Newspapers Limited [1986] I.R. 13 (at page 19) that:
“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, whilst the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.”
The “sanctity” of such awards is recognised in the passage from the judgment of the Court of Appeal in John v. MGN Limited [1997] QB 586 where it is stated at page 616 of the report as follows:
“The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.”
Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.
Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.
It has been submitted on behalf of the defendant that larger awards should be subjected to a more searching scrutiny than has been customary in the past and that the test to be applied is:
“Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?”
If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to by Finlay C.J. and the giving of “real weight” to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.
Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.
Thus it is clear that while the assessment by a jury of damages for defamation is not sacrosanct it does carry considerable weight such that appellate courts have been slow to interfere with the assessments by a jury and an appellate court should only set aside such an award if the appellate court is satisfied that the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made the award in all the circumstances of the case. Counsel on behalf of the Newspaper laid emphasis in his submissions on the requirement of proportionality. Reference was made to a further passage from the judgment of Hamilton C.J. in de Rossa at page 456 in the context of whether guidelines as to quantum by reference to figures should be given to a jury where Hamilton C.J. said:
“It is submitted on behalf of the defendant that the aforesaid guidelines should be given to the jury in a defamation action and that the giving of such guidelines are mandated by the Constitution and Article 10 of the Convention as being necessary to vindicate the defendant's rights under the Constitution and the Convention.
By virtue of the provisions of Article 40.6.1 of the Constitution, the defendant is entitled, subject o the restrictions therein contained, to exercise the right to express freely its convictions and opinions.
The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1 and 40.3.2 which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen.
Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.
The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen's good name (Hynes-O'Sullivan. v. O'Driscoll [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”
Counsel on behalf of the Newspaper also referred to the case of Independent News and Media & Independent Newspapers Ireland Limited v. Ireland (Application No. 55120/00, judgment 16th June, 2005) in which complaint was made by the Applicant against Ireland arising out of the decision in de Rossa. The complaint made was that the safeguards provided in Irish law against disproportionately high jury awards in libel cases were inadequate. The European Court of Human Rights in its judgment (at para. 110) commented as follows:
“110 The parties also agreed, and indeed it was made clear in the Tolstoy Miloslavsky judgment (at para. 49), that an award of damages following a finding of libel must be ‘necessary in a democratic society’ so that it must bear a reasonable relationship of proportionality to the injury to reputation suffered. The jurisprudence does not provide for a shifting protection of the rights involved once libel is established (as suggested by the Government at paragraph 90 above): rather the Court assesses whether the compensatory response to a libel was a proportionate one by finding where the appropriate balance lies between the conflicting Convention rights involved (Von Hannover v. Germany, no. 59320/00, para. 58, ECHR 2004 . . .).
111. However, the parties diverged on the question of whether the present award was proportionate. The applicants considered the award to be of such significance that the Court could not conclude as to its proportionality without examining the adequacy and effectiveness of the domestic safeguards against disproportionate awards and maintained that their application was indistinguishable from that of Tolstoy Miloslavsky. The Government were of the view that the issues raised were more complex than a mechanical application of that judgment and that, in any event, the present case was clearly distinguishable from the Tolstoy Miloslavsky case.”
The European Court of Human Rights concluded that it was not demonstrated, “that there were ineffective or inadequate safeguards against a disproportionate award of the jury in the present case”. Counsel on behalf of the Newspaper relied on those authorities and on the judgment of the European Court in the case of Scharsach v. Austria, Application No. 39394/98, judgment of 13th November, 2003, to argue that a disproportionately large award was an interference with the rights of the other party under Article 10 of the Convention which of course provides for the right to freedom of expression. This, of course, was recognised by Hamilton C. J. in the case of de Rossa where he acknowledged that the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name as referred to in the passage cited above.
Ultimately it was argued that having regard to the decision of the European Court of Human Rights particularly in the case of Independent News and Media Limited v. Ireland that there was limited room on appeal for any special deference towards jury awards of damages. Counsel on behalf of Ms. Leech took issue with that submission and argued that in the light of the decision of the Supreme Court in de Rossa and having regard to the decision of the European Court of Human Rights in Independent News and Media v. Ireland the position of the Supreme Court and indeed the European Court of Human Rights is that the Irish approach to scrutiny of the award of damages by a jury in cases such as this is compliant with the Irish Constitution and the Convention. It was further submitted that the decision of the European Court of Human Rights in Independent News and Media v. Ireland did not alter or reconfigure Irish law in respect of awards of damages in defamation actions. I agree with that submission. As is clear from the authorities referred to above the position in Irish law is that an appellate court will be slow to interfere with the verdict of a jury on the assessment of damages but nevertheless awards by juries are subject to scrutiny and if an award is so disproportionate in the circumstances of the case having regard to the respective rights of freedom of expression on the one hand and on the other hand the requirement under the Constitution to protect the good name of every citizen that no reasonable jury would have made such an award then the award will be set aside on appeal.
Factors to be taken into consideration
It is obvious that in subjecting an award of damages to scrutiny, it will be necessary for an appellate court to examine the facts and circumstances of any given case as it is only by doing so that one can determine whether the award is disproportionate to the wrong done. What factors can be taken into consideration in this regard?
The judgment of Hamilton C.J. in de Rossa is a useful starting point in considering this question. Both parties on this appeal have cited a passage from his judgment in which Hamilton C. J. quoted with approval a passage on this topic from the decision of the Court of Appeal in John v. MGN Limited [1997] QB 586, at page 463:
“The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John v. MGN Ltd. [1997] QB 586 at page 607 of the report where it is stated as follows:
‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way’.”
Hamilton C.J. in the de Rossa case then proceeded to consider the damages awarded in that case under a number of specific headings, namely, the gravity of the libel, the effect on the plaintiff, the extent of the publication and the conduct of the defendant. I propose to consider these factors later in the course of this judgment but before doing so there are two other matters to which I wish to refer.
Compensatory damages
Counsel on behalf of the Newspaper have pointed out that the damages awarded in this case are “compensatory” damages. It was accepted that the role of compensatory damages in defamation cases is not on all fours with the role of compensatory general damages in personal injuries cases. There is a “vindicatory” element to damages in defamation cases which is not a factor in general damages in a personal injuries case. Nevertheless, it was argued that the core purpose of compensatory damages in libel cases is to compensate the plaintiff for the injury actually suffered such as injury to reputation, distress, hurt and humiliation. It was pointed out that there was no award of aggravated or exemplary/punitive damages made in this case. By contrast, counsel on behalf of Ms. Leech stated that compensatory damages embrace a variety of elements. It was submitted that one of those elements involved what could be described as aggravating factors, such as the conduct of a defendant even if that was not expressly provided for in the award of the jury. Reference was made to a passage from McMahon and Binchy, Law of Torts (4th ed.) in which the learned authors, speaking of the position that pertained prior to the coming into force of the Defamation Act 2009, made the following observation (at para. 34.366):
“Punitive damages were available in defamation claims though they were rarely awarded expressis verbis. Many very substantial jury awards over the years can be explained only in terms of their punitive purpose.”
Juries in defamation actions are sometimes asked to assess not just compensatory damages but also aggravated damages under separate headings and, in an appropriate case, exemplary/punitive damages. This is not a case in which the matter went to the jury on the basis that the jury was asked to assess damages under separate headings of general damages, aggravated damages and/or exemplary/punitive damages. To that extent this case has to be viewed on the basis that the award was designed to meet the factors encompassed by way of compensatory damages. It is not necessary to repeat again the passage quoted by Hamilton C.J. in de Rossa from the judgment of Sir Thomas Bingham M.R. in the case of John v. MGN which sets out in detail the nature of compensatory damages in defamation proceedings. As can be seen, a variety of factors require to be taken into consideration. Sir Thomas Bingham M.R. referred to the fact that compensatory damages could include an element to compensate for additional injury caused by the conduct of the defendant. To some extent there is an overlap with what is comprised in the category of aggravated damages. It is perhaps worth recalling the succinct description of damages given by Finlay C. J. in the case of Conway v. Irish National Teachers Organisation [1991[ 2 I.R. 305 in which he gave the following analysis of damages:
“In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are: -
1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
2. Aggravated damages, being compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.”
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court's particular disapproval of the defendant's conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.”
Thus, it can be seen that aggravated damages are an element of compensatory damages increased by reason of such matters as were spelt out by Finlay C.J. There is a degree of overlap between ordinary compensatory damages and aggravated damages in defamation actions. The fact that a separate question did not go to the jury herein asking them to assess aggravated damages does not mean that when the jury were assessing damages having regard to the circumstances of the case, they could not consider the conduct of the defendant both in relation to the publication at issues, the lack of an apology and the manner in which the case was defended. In other words, their award could properly encompass an element of damages designed to compensate for those matters which, in an appropriate case, could be dealt with by way of a separate heading of aggravated damages.
The learned trial judge herein in his charge to the jury explained the purpose of damages as having three functions, namely:
“Consolation for the distress caused by the defamatory statement; to repair the harm to his or her reputation, and that includes business reputation, . . . and a vindication of the person’s reputation.”
He went on to tell the jury that they could consider, inter alia, the conduct of the plaintiff, her position or standing in society in Waterford, in Dublin, in her business community. He told them that they could consider the nature of the libel which in this case contained the suggestion that “She was immoral, that she was unfaithful to her husband, that she was a person of - the phrase is ‘loose morals’, that she had betrayed her marriage, that she had betrayed her family”. He told them that they could consider the mode and extent of the publication. He also advised them that they were entitled to take into account the absence of an apology if the jury considered that to be appropriate. He pointed out that the jury would be entitled to take into consideration, if they took the view that this was a gross defamation, the fact that the Newspaper had maintained that defamation “right up to what would be the bitter end”. These are factors that the learned trial judge told the jury they were entitled to consider. There was no issue raised by the defendant in this appeal regarding the charge to the jury.
It is long established that the jury in assessing damages can take into account relevant aspects of the conduct of the defendant from the time of publication up to the conclusion of the case, including such matters as the nature of the defamation, the extent of the publication, the absence of an apology or persisting in a plea of justification which is not supported by the evidence. These factors can be considered under the heading of compensatory damages or in an appropriate case, aggravated damages. There is no basis in this case to support the contention that in assessing compensatory damages, the jury took into account matters which did not arise under the heading of compensatory damages or that the jury was restricted in making the award of compensatory damages by reason of the fact that there was no separate heading of aggravated damages on the issue paper that went to the jury.
Comparisons with other awards
It was urged on the Court on behalf of the Newspaper that in considering the issue of proportionality it was open to this Court to consider awards that had been set aside as being too high in other defamation cases. Reliance was placed on the judgment of Keane C.J. in the case of O’Brien v. Mirror Group Newspapers Limited [2001] 1 I.R. 1 where he said at page 18:
“. . . I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett v. Independent Newspapers Ltd. or Hamilton C.J. in de Rossa v. Independent Newspapers plc. to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court.”
Undoubtedly, some assistance may be derived from a comparison of other cases in which awards have been set aside. Nevertheless one has to be careful in taking that approach. As Keane C.J. went on to say (at page 18):
“No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Broome v. Cassell and Co. [1972] AC 1027 at p. 1071, when drawing the distinction between damages in defamation cases and damages for personal injuries: -
‘What is awarded is . . . a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.’
Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.”
The Court in that case proceeded to compare the damages awarded to the plaintiff in those proceedings as against the damages awarded in the de Rossa case. Keane C.J. went on to comment:
“In the present case, the article complained of stated that the plaintiff had paid £30,000 to a government minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in de Rossa v. Independent Newspapers plc. [1999] 4 IR 432. The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.”
In the O’Brien case, the jury had awarded the plaintiff £250,000 by way of damages. The verdict of the jury was set aside and a re-trial was ordered. Ironically, the re-trial resulted in a decree of €750,000, a sum considerably more than that previously found to be excessive. No doubt the passage of time between the date of the original libel trial and the date of the subsequent libel trial had some bearing on the difference in the sums awarded. The passage of time elapsed between awards in other cases together with the wide variations possible in the factual matrix necessitates that some degree of caution must be exercised in determining whether an award of a jury is disproportionate by comparison of that award with other awards set aside on the basis of being excessive. Nevertheless, comparisons with other cases may provide some assistance in assessing the gravity of the libel.
It was also urged on the Court by counsel on behalf of the Newspaper that in considering the level of damages to be awarded in defamation actions, the Court should have regard to the highest level of general damages that may be awarded in the most serious personal injuries cases. It was argued that such an approach would be of assistance in assessing the proportionality of the damages awarded. Reliance was placed on the Supreme Court decision in the case of M.N. v. S.M. [2005] 4 IR 461, a case involving a trial by judge and jury in which the sum of €600,000 was awarded to the plaintiff in respect of injuries suffered by her by reason of the sexual abuse of the defendant over a number of years culminating in rape. The Supreme Court in that case set aside the award of €600,000 and substituted a sum of €350,000 by way of general damages on the basis that the sum of €600,000 was so far in excess of a reasonable award of compensation that it was disproportionate and needed to be set aside. One of the factors of relevance in that case was noted by Denham J. at page 467 of her judgment:
“It appears that this is the first award of damages for sexual abuse by a civil jury. It is the first appeal before the Supreme Court from such an award which raises the issue of the sum to be awarded in general damages for sexual assault, sexual abuse and rape in a continuum, of a teenage girl. Consequently, there are no precedents to guide the court. However, there is information from other sources which may inform the court and which may be of assistance.”
Denham J. went on to comment in the course of her judgment at page 475 as follows:
“At issue on this appeal is the award of general damages by a jury. In assessing the level of general damages, there are a number of relevant factors to consider. Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined.”
She went on to observe:
“Having considered the facts and all the circumstances of the case, including the nature of the injuries of the plaintiff, the law on general damages for personal injuries, noting (but not applying) the Residential Institutions Redress Act 2002 and making reference to the conduct of the defendant in admitting his guilt at an early stage of the criminal proceedings, I am satisfied that the sum of €600,000 awarded by the jury is so far in excess of a reasonable award of compensation that it is disproportionate and should be set aside.”
Accordingly she allowed the appeal on the question of damages. She also expressed the view that she was satisfied that there “should be a rational relationship between awards of damages in personal injuries cases”.
I think it is apparent that there is a close relationship between an action for personal injuries and an action for damages for assault arising out of sexual abuse such as that described in M. N. v. S. M. Both such actions are, in reality, a form of action for damages for personal injuries. There is an obvious correlation between the type of damages that can be awarded in a personal injuries case and in a sexual assault case. It is not so easy to see an obvious correlation between an award in a personal injuries action and an award in an action for defamation. McMahon and Binchy, Law of Torts, make the following observation as to the difficulty in making an analogy between the situation in personal injuries awards and those in defamation cases at paragraph 34.364:
“It seems probable that, over time, a rough judicial ‘tariff’ will emerge as the Supreme Court translates broad generic ascriptions, such as ‘very serious’ and ‘most serious’, into actual numbers of euros. In England the courts have applied what is ‘in effect a ceiling’ figure, now of the order of £275,000.
We suggest that the Supreme Court should hesitate before following that lead. The English courts have been affected by the analogy of damages awards in personal injuries claims, where a ‘cap’ for general damages applies, as it does in Ireland. But that cap is based on considerations of principles and policy relating to personal injuries which has no direct parallel with those relating to defamation, where the function of damages ranges beyond compensating the feelings of the plaintiff to vindicating his or her good name.”
The authors went on to refer to the provisions of s. 31(7) of the 2009 Act which permits the Court to award special damages for financial loss suffered by a plaintiff as a result of injury to his or her reputation and observed:
“It may be that compensation for future economic losses will be incorporated into a global award of general damages and in any event the boundaries between special and other compensatory damages are somewhat porous.”
One of the arguments made in the de Rossa case was that juries should be told about the level of awards in personal injuries cases. Hamilton C. J. stated as follows at p. 459:
“On the issue as to whether or not references to awards in personal injuries actions should be permitted, I prefer the conclusion reached by the Court of Appeal in Rantzen v. Mirror Group Newspapers Ltd. [1994] Q.B. 670 to that reached in John v. M.G.N. Ltd. [1997] QB 586 and accept the reasoning contained in the following passage from the judgment of Lord Hailsham L.C. in Broome v. Cassell & Co. [1972] AC 1027, where he stated at p. 1071:-
‘In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in Uren v. John Fairfax & Sons Pty Ltd. (1966) 117 C.L.R. 118 at 150: ‘It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.’ This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’. In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well - as for instance by a handsome apology - or the plaintiff badly,…”
Hamilton C.J. was dealing with the question or whether or not the jury should be told about the type of awards that could be made in personal injuries cases but the reasoning contained in the passage set out above demonstrates why there is a problem in trying to make a comparison between the awards of damages in personal injuries cases with the awards of damages in defamation cases. I have come to the conclusion that the analogy of awards in personal injuries cases may be of some assistance in the area of injuries caused by reason of sexual abuse but is not so useful an analogy in the case of awards in respect of defamation actions for the reasons explained above.
The gravity of the libel
I now propose to examine the factors that should be taken into account when considering the proportionality of the award of damages in this case, starting with the gravity of the libel. The starting point for this consideration has to be the meanings ascribed to the words complained of by the jury. It is clear from the answer to the questions posed to the jury on the issue paper that the jury accepted the thrust of Ms. Leech’s case to the effect that the article meant that:
(a) she, a married woman with two children, had an affair with the Minister;
(b) that as a result of that affair, she got lucrative Government contracts;
(c) that she was someone who was prepared to have an adulterous affair to advance her business career;
(d) that she betrayed the trust of her husband and children.
Undoubtedly the articles complained of by Ms. Leech in these proceedings amounted to a serious and sustained attack on her business and personal integrity. I think one could fairly compare the libel in this case with that in the O’Brien case which contained an allegation that the plaintiff had paid a £30,000 bribe to a Government Minister to procure a lucrative radio licence. In effect Ms. Leech was accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts. Such a defamation would undoubtedly have a serious effect on an individual’s business and personal reputation. I accept that the defamation in this case could not be described in the same terms as that in the de Rossa case which was described as coming within the category of “the gravest and most serious libels which have come before the courts” but it is nonetheless a very serious libel. Given the allegations of adultery made in respect of Ms. Leech, this must have been a source of real hurt and distress to Ms. Leech.
The extent of the Publication
The articles complained of in this case were published in the Evening Herald newspaper between the 30th November, 2004 and the 17th December, 2004. In all, the plaintiff sued in relation to eleven articles in nine editions of the Evening Herald newspaper over that period of time. This was described by Ms. Leech’s lawyers as a “deliberate press campaign”. A reference to a number of the headlines over some of the articles complained of give a flavour of the nature of the publications complained of. On the 30th November, 2004, the headline stated: “Minister’s P.R. friend on €1,200 every day”; on the 1st December, 2004, the headline read: “Cullen gave pal a SECOND top job”; also on the 1st December, 2004, the headline over an article was as follows: “Insiders reveal the luxury lifestyle of €1,200 a day political guru”. Over the following days headlines included the following: “Minister to face Fine Gael grilling over Leech controversy”; and “Cullen faces music over crony claim” and “Heat on Minister as Leech job offer is probed”; “Why inquiry must get to the bottom of Monicagate” and “Cullen paid Monica an extra €43,000”. A number of other articles focused on the role of the Minister. It can be seen that there was a sustained campaign over a number of days. The Evening Herald newspaper is a newspaper that circulates widely within the State having a circulation of approximately 90,000 newspapers sold per day. Further, the readership of the newspaper would be in excess of that number. This was not a one-off publication in a newspaper but rather was part of a sustained campaign building up over a period of just over two weeks. At the end of that period, Ms. Leech had gone from a person who would not have been known to the general public at all to someone who was notorious. The proportionality of the damages therefore has to be considered on the basis that the publication of the defamation in this particular case was particularly extensive and widespread.
The conduct of the defendant
The Newspaper in this case in the course of its defence pleaded a number of defences including justification (although it has to be said that the Newspaper did not seek to justify the meanings contended for by Ms. Leech but approached the matter by seeking to justify the articles on different meanings), fair comment, and what is now known as “Reynolds” privilege. The defence of Reynolds privilege was dropped during the course of the trial. This is a case which went to the jury on the basis of the two questions set out above. Insofar as the question of justification is concerned it is clear that the jury did not accept the arguments put forward on behalf of the defendant and accepted the meanings contended for by the plaintiff as set out in the first question put to the jury. To run a defence of justification on any basis and to fail is a matter which can be taken into account by the jury in the assessment of damages. It is, as was described in the course of submissions on behalf of Ms. Leech, a high risk strategy for a defendant.
That this is so can be seen from the judgment of Hardiman J. in the case of Bradley v. Independent Star Newspapers [2011] 3 IR 96 at page 122 where Hardiman J. stated:
“In my view, a defendant who wishes to plead justification must realise that he must justify the article actually published. In some cases there may be some genuine doubt as to its meaning: there is none here.
Odd forms of pleading such as this may arise in circumstances where the defendant realises that he cannot justify what he actually printed but believes he may be able to justify something not dissimilar. Accordingly, he pleads that the article means something other than what the plaintiff alleges and that, in this sense, it is true.
A plaintiff confronted with such a plea, in order to ensure an efficient and relatively brief hearing, which is no more expensive than it needs to be, should in my view consider bringing an application to the court by way of motion to decide whether or not the plea is a good one, and to resolve any genuine issues of meaning.”
Such a course did not occur in these proceedings. However, the point is that the Newspaper pleaded justification albeit not of the meanings contended for by Ms. Leech. This is, as was pointed out, a risky strategy and one which did not succeed, clearly.
It was also pointed out on behalf of Ms. Leech that no apology was offered by the defendant at any stage. Reference was made to the remarks of Geoghegan J. in the course of the decision in O’Brien which he said at page 43 of the judgment:
“In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been open to the jury to take the view that they had done so. The award had to be of a level that the plaintiff would feel reasonably compensated.”
Thus, obviously, one of the factors that can be and may well have been taken into consideration by the jury in this case was that at no stage was there any offer of an apology to Ms. Leech by the Newspaper.
A newspaper that published no photographs would be a very dull newspaper, indeed. It is often the case that newspaper articles are accompanied by photographs which illustrates the article in which they appear. A further aspect of the conduct of the defendant complained of in these proceedings relates to the manipulation of the photographs which accompanied the newspaper articles at issue in these proceedings. One of the photographs was originally a photograph with four people in it including Ms. Leech and the Minister. It was cropped to show just the Minister and Ms. Leech and she complained that it was cropped in such a way as to give the impression that she and the Minister were “holding hands”. (See Day 4, page 103 of the transcript). She made this complaint about the photograph accompanying the article set out in Schedule 5 and again at Schedule 7 of the series of articles. She also complained of a photograph that showed her with a backdrop of New York. In that case there was a photograph of Ms. Leech the original of which was at a function in Waterford. It would perhaps be helpful to quote directly from the transcript of her evidence in this connection which is at page 103 of the transcript on Day 4, commencing at line 13:
“Then if you go all the way to this photograph, I was wearing this dress at a private function in Waterford, whereas behind me is the New York skyline. That takes an awful lot of effort, an awful lot of skill and a huge amount of intent on the part of the Herald to portray me in New York in a dress with the Minister. This time the Minister has been removed and a new version of him in a lounge suit is put in to make it look again as if I actually cavort during the day on government business in a dress like this. Then that brings me to the dress. Again, the photograph has been with great intent, with great skill has been manipulated to make my hand, which is down by my side, appear like my thigh. The dress has been manipulated, the photograph has been manipulated to now give me a dress that is slit to the waist, something I would never wear. Certainly this is not a way I ever appeared on government business.”
There is no doubt that the photographs used in the various articles were taken from real photographs of Ms. Leech with the Minister albeit in company with others. Equally there is no doubt that the photographs were cropped and manipulated. The photograph of Ms. Leech displayed against the background of New York certainly gave the impression that the type of dress being worn by Ms. Leech was one slit to the thigh. The fact that the photographs were manipulated and altered or cropped in the way described is something that the jury were asked to take into consideration in their deliberations on behalf of Ms. Leech and it was contended to the jury that the purpose of doing this was to suggest that Ms. Leech and the Minister were having an affair. It seems to me that the jury were entitled to take that aspect of the matter into account in the course of their deliberations. It was open to the jury to consider that the manner in which the photographs were manipulated was designed to lend force to the implication contained in the articles to the effect that Ms. Leech got her contracts by virtue of the fact that she was having an affair with the Minister. Therefore, this was an aspect of the conduct of the Newspaper that could be taken into consideration by the jury and, if considered by them to be appropriate, to mark it in their assessment of the damages.
The impact of the defamation
Defamation can impact on an individual in a number of ways. The defamation can impugn someone’s moral character. It can also impugn a person’s business, trade or professional standing. It can impact on other aspects of their status as a person, calling into question personal qualities such as honesty, loyalty, honour, thus impugning an individual’s personal integrity.
The defamation in this case was far reaching in the sense that it attacked Ms. Leech in respect of her personal and professional life. She was a married woman with two children. The implication of the articles was that she was unfaithful to her husband and that she had a part to play in the break-up of the marriage of Mr. Cullen and his wife.
The defamation attacked her professional integrity in that it conveyed to the world at large the impression that she was prepared to engage in an adulterous relationship in order to advance her professional standing and career. Running through the case was a question mark over the capability of Ms. Leech for the tasks for which she was engaged. Thus, the articles attacked not just her moral character but also her professional reputation.
Immediately prior to the appearance of this sequence of articles Ms. Leech had set up a consultancy business with another individual. That business was launched at the annual dinner of the Waterford Chamber of Commerce in November 2004. Following the publication of the articles, the individual with whom she had set up the business consultancy pulled out of the partnership with Ms. Leech. The business she had hoped to establish at that stage simply never got off the ground. In addition, at the conclusion of the contract with the Department of the Environment, her contract was not renewed.
Ms. Leech in the course of her evidence also described her own personal hurt and distress over the series of articles that appeared. She described not only her stress but also the effect that the articles had on her sons and on her husband. One of her sons had to change school during his Leaving Certificate year because of the articles. I think it is undoubtedly the case that the articles caused a great deal of stress to Ms. Leech and her family. In addition, she described how she was personally abused in Waterford as a result of the articles. Overall, it would be no exaggeration to say that the series of articles published by the Newspaper in respect of Ms. Leech had a profound effect on her in every aspect of her family and professional life. This is also a factor that can be taken into consideration by a jury.
Freedom of expression
The point was made on behalf of the Newspaper that the Court in considering the question of damages should have regard to the freedom of expression of the Newspaper. The argument was that extremely large awards of damages in cases such as this have a chilling effect on the freedom of the press and therefore should be subject to careful scrutiny. In this context, reliance was placed on the decision of the Supreme Court in the case of Dawson v. Irish Brokers Association, the Supreme Court, Unreported, 27th February, 1997, in which O’Flaherty J. observed at page 25 of the judgment:
“There may be cases where the circumstances of the case will call for the consideration of an award of aggravated or exemplary damages. But this was not such a case. The damages, as far as this case is concerned, could be compensatory only. The jury were entitled to award damages for loss of reputation, as well as for the hurt, anxiety, trouble and bother to which the plaintiffs had been put. However, the defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry. The opposite has proved true in the publishing sphere in this and other countries - with sad consequences for those who lost employment as a result of untoward awards. Further unjustifiably large awards, as well as the cost attendant on long trials deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.”
It is the case that an award of damages must be fair to the plaintiff and to the defendant. That cannot be gainsaid. However, freedom of expression is not an entirely unrestricted freedom. In the context of defamation proceedings it must be balanced by the provisions of Article 40.3.2 of the Constitution which provides that the State “shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”. The matter was expressed trenchantly by Hamilton C.J. in the de Rossa case when he said at page 456:
“Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.”
Nevertheless it was accepted by Hamilton C.J. in that case in a passage referred to previously in the course of this judgment that the existence of the right of freedom of expression and the obligation on the State by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the good name of every citizen necessarily involves what Hamilton C.J. described as “a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name”. It is from that balancing exercise that he identified the concept of proportionality. Accordingly, I am satisfied that an award of damages cannot be so disproportionate as to have the effect of not just vindicating the good name of the citizen but of restricting the freedom of expression of a newspaper.
Damages
The award of damages in this case in the sum of €1, 872,000 is a very large award by any standard. The defamation in this case consisted of a series of articles over a period of two and a half weeks which impugned the character of Ms. Leech in every aspect of her life. It is clear that the effect of the defamation in this case was considerable. It appears to have had a real and long lasting impact on her professional life. Her contracts were not renewed and the business which she had just set up with another individual collapsed almost as soon as it had begun. The defamation also impacted on the life of her family to an extent that must have increased the stress and personal hurt felt by Ms. Leech. The extent of the loss in terms of her business life was never quantified and there was no claim in respect of special damages but, of course, it would be open to a jury to include in an award of general damages an element of damages in respect of loss of business opportunity. Overall, I am satisfied that the defamation in this case was a very serious defamation. Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale. A somewhat unusual feature of this case was the sustained campaign in the Evening Herald in respect of Ms. Leech The consequences of it affected her in her day to day life, personally and in her business life. Her newly launched business was destroyed before it could become established. I have no doubt that from her point of view it was a very serious matter. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts, such as that in the de Rossa case. That said, the award made to Ms. Leech in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.
I am conscious of the firm instructions of Ms. Leech to her legal representatives that in the event that this Court came to the conclusion that the amount of the award was excessive that the Court should in those circumstances remit the matter to the High Court for assessment by a jury again. Whilst I understand those to be her instructions I am satisfied that in the context of this case it would be desirable for all parties to bring an end to the litigation between the parties and in those circumstances it seems to me that the approach to be taken by the Court should be to set aside the verdict of the jury on damages and to substitute a sum in the figure of €1,250,000 for damages.
In the circumstances it is not necessary to address the argument made on behalf of the Newspaper as to the correctness or otherwise of the order made by the learned trial judge directing the payment out of the sum of €750,000 by way of damages and the sum of €100,000 by way of costs on an interim basis pending the appeal.
Accordingly, I would allow the appeal of the Newspaper and would substitute the sum of €1,250,000 by way of damages for the sum awarded by the jury in this case.
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 19th day of December, 2014 (No 1)
Introduction:
1. The plaintiff is a married woman with two children, and, for several years leading up to the events next described, had been working as a communications consultant in the private sector in this country. The defendant is the proprietor and publisher of numerous publications, including the “Evening Herald”, which is a daily publication with a substantial and nationwide circulation. The third person who features in this case is Mr. Martin Cullen, who at all material times was a senior Minister in the Irish Government.
2. Within quite an acute timeframe, that is between the 30th November, 2004, and the 15th December, 2004, the defendant published a series of articles of and concerning the plaintiff, on the following occasions and under the following headlines:-
“1. 30th November, 2004 (page 2): “Minister’s PR friend on
€1,200.00 every day”
2. 1st December, 2004 (page 2): “Cullen gave pal a SECOND
top job”
3. 1st December, 2004 (page 3): “Insiders reveal the luxury
lifestyle of €1,200 a day political guru”
4. 2nd December, 2004 (page 4): “New Santa leaves no Claus for
concern”
5. 2nd December, 2004 (page 19): “RUMOURS: Minister says
6. 3rd December, 2004 (pages 24 & 25): “THE CULLEN FALLOUT”
7. 6th December, 2004 (page 6): “Cullen faces music over crony
claim”
8. (i)13th December, 2004 (front page): “CULLEN: I STAND OVER
MONICA’S 8 JUNKETS”
(ii) 13th December, 2004 (page 2): “Cullen defends 8 junkets”.
9. 15th December, 2004 “THE MINISTER, MONICA
(pages 1, 3, 4, 5 & 14): AND THE MYSTERY MEETING”
3. As part of the material so published, the defendant, in its edition of the 2nd December, 2004, included what was alleged to be a misleading and misrepresentative cropped picture purporting to depict Minister Cullen and the plaintiff together as a couple in formal evening wear, whereas the original photograph as actually taken was that of four people. In its edition of the 6th December, 2004, a similar photograph, cropped in the same way and to the same effect, was also published. Further, on the 15th December, 2004, the defendant published a piece accompanied by a misleading composite image showing Minister Cullen wearing a business suit, together with the plaintiff wearing a red cocktail dress, portrayed in such a way as to give the impression of there being a high, long and revealing slit in the dress, up to the hip, all of which in turn was superimposed upon an image of the New York skyline. Such images, it was claimed, were falsely and maliciously published so as to portray the plaintiff and the Minister together as a couple, on occasions dressed in formal evening wear, and, in the last depiction, as a couple together in New York
4. The plaintiff, believing that she had been seriously defamed by these publications, not only when viewed separately but also when taken as a part of a continuum, instituted a Plenary Summons on the 21st December, 2004, seeking appropriate redress in respect thereof.
5. In these proceedings she alleged that the material published, in its natural and ordinary meaning, meant and was understood to mean:-
“(a)That the plaintiff had travelled to, but had improperly and unprofessionally failed to attend, a UN Conference on Sustainable Development in New York, at taxpayers’ expense;
(b) That the plaintiff had deceived the Department of the Environment and Local Government into recording that she had attended, when she had not, a UN Conference on Sustainable Development in New York, the cost of which had been met by the taxpayer;
(c) That there was no good reason for the plaintiff’s participation in foreign business trips with Minister Martin Cullen;
(d) That the plaintiff, a married woman, had purported to travel abroad with Minister Martin Cullen on business but had in fact travelled abroad with Minister Martin Cullen for an improper and unprofessional purpose unconnected with Department business;
(e) That the plaintiff’s charges to the Department of the Environment and Local Government were €1,200.00 per day, and double that of the other tenders for her work;
(f) That the plaintiff’s charges to the Department of the Environment and Local Government, being €1,200 per day and double that of the other tenders for her work, were unjustifiable and out of keeping with charges ordinarily made for such work;
(g) That the plaintiff did not do any work during the course of business trips upon which she had travelled at taxpayer’s expenses;
(h) That the plaintiff had no relevant experience prior to her engagement as a communications consultant by the Department of the Environment and Local Government;
(i) That the plaintiff, a married woman, had had an improper sexual relationship with Minister Martin Cullen;
(j) That the plaintiff, a married woman, had had an extra-marital affair with Minister Martin Cullen;
(k) That the plaintiff had been unfaithful to her husband and had betrayed his trust and the trust of their children;
(l) That the plaintiff had enjoyed the benefit of foreign breaks, on the pretence of her purported participation in Department business, because she had been having an improper sexual relationship with Minister Martin Cullen.”
These alleged defamatory imputations related to one article only, namely that published on the 15th December, 2004, but in general can be taken as being representative of her overall complaints.
6. The pleadings went on to assert that by reason of such publications, the plaintiff had been devastated, shunned and avoided, had been exposed to public scandal and contempt, had suffered acute embarrassment and hurt to her feelings and overall had been gravely damaged in her character and reputation. She sought damages, including aggravated and/or exemplary damages, for these wrongs and for the general loss of business which resulted.
7. The defendant company admitted publication of both the articles and the images in question, but in a series of pleas otherwise effectively denied each and every essential element of the plaintiff’s claim. It asserted, at para. 10 of its defence, that the material was true in substance and in fact in its natural and ordinary meanings but not in the meanings contended for by the plaintiff. Such alternative meanings were then described by reference to each separate article so published. Finally, it denied that she was entitled to any damages at any level of the compensation chain.
The Verdict:
8. The case came on for hearing in due course before a jury presided over by de Valera J.; after a seven day trial two questions were left for its consideration on the 24th June, 2009, namely:
The issue paper went on to state that if the jury should answer “yes” to either or both of these questions, then they should continue and assess damages. By a majority the jury answered “yes” to question (a), and unanimously answered “no” to question (b). It then considered the question of damages and awarded the plaintiff the sum of €1,872,000.00. Judgment was duly entered for that amount. This judgment is concerned with the appeal from the jury’s verdict and the resulting order.
The Notice of Appeal:
9. The Notice of Appeal as filed challenged a ruling made by the trial judge which prohibited those jury members who were in the minority on question (a) from participating in any discussion on the damages issue. That challenge is not now being pursued. Therefore, this appeal now relates to a single issue, namely that of damages. It is grounded upon a generalised submission that the award was one which no reasonable jury could make, that it was disproportionate to the injury suffered by the plaintiff and that it was in breach of the defendant’s constitutional rights, as well as its rights under the European Convention on Human Rights (“the Convention”).
The Issues:
10. In broad terms I propose to consider the issues arising on this appeal under the following headings:-
(a) The test for assessing compensation in defamation actions having regard to the various interests involved;
(b) The function of an appellate court on a review by a dissatisfied defendant;
(c) The role of the jury in assessing such damages;
(d) The compensatory factors;
(e) Whether the award in the instant case is susceptible to successful challenge; if so,
(f) Whether there should be a retrial; if not,
(g) What should the appropriate award be; and, finally,
(h) How this Court should approach that task.
The Legal Regime Pertaining:
11. Between the trial of the instant action and the hearing of this appeal the Oireachtas has enacted the Defamation Act 2009, which repeals, in its entirety, the Defamation Act 1961. The 2009 Act includes s. 13, dealing with powers of an appellate court, s. 31, dealing with general damages, and s. 32, which relates to aggravated and punitive damages: what exact effect these measures will have, inter alia on the judge’s direction to the jury, remains to be seen. However, as the 2009 Act and therefore these sections have no impact on this case by virtue of s. 3 of the Act, it would of course be quite wrong for me to alter my views on the principles by which the instant appeal must be decided simply because of legislative changes subsequently introduced. Consequently, the statutory provisions must be disregarded.
The Assessment Test: The Review Test:
12. The general approach to the assessment of damages in this type of action, and for appellate review, is essentially not in controversy, and in the main derives in recent times from cases such as Barrett v. Independent Newspapers Limited [1986] I.R. 13 (“Barrett”) and de Rossa v. Independent Newspapers Plc [1999] 4 IR 432 (“de Rossa”); sometimes O’Brien v. Mirror Group Limited [2001] 1 I.R. 1 (“O’Brien”) is also mentioned in this context. These decisions, obviously, are on the domestic front. There is also case law from the European Court of Human Rights, which has considered, for Convention purposes, the appropriateness of national tests at both levels of judicial engagement: cases such as Scharsach v. Austria (Application No. 39394/98, 13th November, 2003), Tosltoy-Miloslavsky v. United Kingdom (Application No. 18139/91; (1995) 20 EHRR 442; 13th July, 1995) and Independent News & Media & Anor v. Ireland (Application No. 55120/00; (2006) 42 EHRR 46; 16th June, 2005) (“Independent News & Media v. Ireland”) become relevant in this regard. The Constitution also has significance as a number of rights affected in this case are to be found within its provisions (Article 40.3.1°, Article 40.3.2° and Article 40.6.1°); however, it has not otherwise featured prominently in any more specific way.
13. The acknowledged test, which was stated by Henchy J. in Barrett, remains to the forefront of the general principles in this area of law. That learned judge said:-
(i) “In a case such as this … it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing amongst right-thinking people as a result of the words complained of.” (p. 23)
And further on he continued:-
(ii) “[A] fundamental principle of the law of compensatory damages … is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that … it should not be allowed to stand.” (p. 24)
The first passage was a direction to the trial judge when addressing a jury; the second a direction intended for the review court. Both, in essence, have been endorsed in several subsequent cases, such as in de Rossa by Hamilton C.J. (at pp. 457-458 of the report) and in O’Brien by Keane C.J. (at p. 19 of the report). These statements of principle by the learned judge were made in the context of general damages only.
14. In certain other cases, however, consideration may also have to be given to aggravated damages, regarded by many (Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305; McIntyre v. Lewis [1991] 1 IR 121 at 140 (O’Flaherty J.)), but not by all (see, for example, McMahon and Binchy, Law of Torts, 4th Ed. (Dublin, 2013) at para. 44.77-44.98), as a species of compensatory damages, as well as to exemplary damages, if the circumstances so require. However, in general the main focus of this aspect of any defamation claim will almost always be on general damages, albeit with some exceptions, such as Crofter Properties Ltd. v. Genport Ltd. (No. 2) [2005] 4 I.R. 28 (“Crofter v. Genport (No. 2)”). In fact exemplary damages, even less so than aggravated damages, will rarely be the headline figure in any type of action; again, with the occasional exception such as the notorious case of Shortt v. Commissioner of An Garda Síochána & Ors [2007] 4 IR 587. In the instant case, however, one is concerned only with identifying the level of damages which is necessary so as to “compensate” Mrs. Leech for the grave harm which she has had to endure by reason of the appellant’s wrongdoing, there being no issue in this Court on exemplary or punitive damages.
15. With great respect to both its importance and authority, I do not consider that the above observations of Henchy J. in Barrett are remarkable in any true legal sense. Inherent in compensatory damages are the features of fairness and reasonableness: no one would conceivably suggest that such damages should be otherwise, much less the converse. The reference to “due correspondence”, however, requires some consideration, as, in effect, this has become the “proportionality” element of the test, on which a jury must be addressed, and which, if breached, permits a review on appeal. The importance of this requirement is evident not only from many decisions in this jurisdiction but also from even a cursory examination of what the European Court of Human Rights (“the E.Ct.H.R.”) has frequently said in its judgments, a topic to which I will return in a moment. First, however, a word about what “proportionality” means in this context.
16. This concept of proportionality is not confined to damages in defamation cases; in fact it is very reminiscent of the wider general principles applicable to many types of actions where compensatory damages are claimed. It was discussed authoritatively as far back as 1876, when the court was identifying a standard by which it might set aside a damages award made by the tribunal of fact (McGrath v. Bourne (1876) I.R. 10 C.L. 160). In the following passage the question being addressed was when, relative to the amount, should such intervention take place, on which issue Palles C.B. had this to say:-
“This amount is variously described in different cases. In some cases the epithet applied to it is ‘scandalous,’ in some ‘outrageous,’ in others ‘grossly extravagant.’ None of these expressions convey any very accurate idea to the mind … A more clear, legal and accurate definition was given by my brother Fitzgerald during the argument, when he stated that the amount should be such that no reasonable proportion existed between it and the circumstances of the case … [whilst] we should not on light grounds review the decision …arrived at [by the jury], [nonetheless] if, on the various views of the facts which are capable of being taken by reasonable men, we adopt that which is most favourable to the Plaintiff, and if, adopting this view, we arrive at the conclusion that no reasonable proportion exists between the damages which we should be inclined to give and the amount awarded by the jury, then the verdict ought not to stand.” (Emphasis added)
Hence, even then a ‘due correspondence’ was required between the award and the compensatable injury if the verdict was to successfully resist appellate scrutiny.
17. Very much the same point was made by Lavery J. in Foley v. Thermocement Products Limited (1954) 90 ILTR 92 and by other judges in numerous subsequent cases since then, including O’Sullivan v. Mellerick [1970] 104 ILTR 8, where O’Dalaigh C.J. at 10 said that:-
“In holding an award of damages to be excessive the criterion to be applied is, in part, subjective. The basic factor is one’s own estimate of the damages; and, then, comparing this estimate with the jury’s assessment, one has to say whether the jury’s figure is so disproportionate to the circumstances of the case as to admit of no other view than that the damages are excessive.” (Emphasis added)
Subject only to one qualification, this approach in general continues to prevail so that an award of damages from both judge and jury is examined by the Supreme Court in the same way. The caveat is this: in a judge only verdict the Court no longer takes the evidential view most favourable to the plaintiff; instead its analysis is based on the entire findings of the High Court judge, which, unlike a jury award, should be self-evident from his or her judgment (Dunne v. Honeywell Controls Ltd (Unreported, Supreme Court, 1st July, 1993, per Blayney J.).
18. Consequently, this notion of an “objective relationship” between award and injury is deeply embedded in the tortious law of damages and in such context should be so understood as having the meaning described. However, its application in defamation cases may well be different than in other cases, given the distinctive nature of that particular cause of action and the essential role which the jury plays in that specific process (see O’Brien, judgment of Geoghegan J. at p. 42 of the report).
19. That this is the true meaning of the proportionality requirement in the assessment of damages is immediately obvious from the majority decision in de Rossa, as set out in the judgment of Hamilton C.J.: in fact, although dissenting on other grounds, I do not believe that Denham J. in any way differed on this point. The following are representative extracts of what the learned Chief Justice said in the context of discussing the State’s obligations under the Convention:-
(i) “The obligation placed on the State is to ensure that the substantive law applicable in the State is designed to ensure a requirement of proportionality and that any award of damages made was proportionate to the damage which the plaintiff had suffered and was a sum which was necessary to provide adequate compensation and to re-establish his reputation.” (p. 457 of report)
(ii) “That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such an appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.” (p. 462 of report)
(iii)“Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.” (p. 463 of report)
Accordingly, the award must be proportionate to what the law recognises as being the compensatable remit of damage and injury which has flowed for that plaintiff from that particular defamatory publication. This applies no less at first instance than it does at appellate level.
20. If this understanding is correct, as I believe it to be, then it is not a straightforward exercise, though perhaps not impossible, to run a damages award through the full architecture of a “Heaney” type proportionality test, which at first glance might be the impression one gets from the decision of the E.Ct.H.R. in Independent News & Media v. Ireland ((2006) 42 EHRR 46). At paras. 41-70 of that judgment, and indeed beyond, the Court sets out what it considers to be the relevant Irish law for the purposes of its decision. It refers to Heaney v. Ireland [1994] 3 I.R. 593 (“Heaney”) and to Murphy v. The Independent Radio and Television Commission [1999] 1 IR 12 (“Murphy”); in both cases the constitutionality of certain statutory provisions was evaluated by the use of the “proportionality test” which had been articulated by the Canadian Supreme Court in R. v. Chaulk [1990] 3 S.C.R. 1303 and which was first authoritatively introduced into Irish jurisprudence by Costello J. in his High Court judgment in Heaney.
21. Having referred to the test as containing the notions of ‘minimal restraint on the exercise of protected rights’ and of the ‘exigencies of the common good in a democratic society’, the learned judge further explained that:-
“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:—
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible, and
(c) be such that their effects on rights are proportional to the objective.”
22. From a fairly modest welcome, this approach quickly gathered pace and for several years past its three-limb test has been widely used for determining not only the validity of legislative restrictions on fundamental and other rights, but also for scrutinising the legality of executive decisions which also affect such rights. This remains its essential and principle use, certainly where the breadth of its entire remit is being applied. Whilst undoubtedly the requirement of there being a rational relationship between certain impugned conduct or action of a specific type and the adverse consequences for those affected thereby has surfaced in several other and different areas of the law, both civil and criminal, such cannot be described accurately as a Heaney type test. In many of these situations the word “appropriate” might convey the same meaning. In any event, given my understanding of what “proportionality” means in the context of damages, it is not, as I have said, immediately apparent why the European Court of Human Rights felt it necessary to refer to either Heaney or Murphy in the context of examining the jury’s award in de Rossa.
23. Notwithstanding the manner of such reference, however, and whatever the reasons therefor might have been, it seems to me that on closer examination, the Court’s appreciation of what might be termed “proportionality” was in terms far closer to “due correspondence” than to a “Heaney” type evaluation. For example, at para. 113 it said:-
“Accordingly, the essential question to be answered in the present case is whether, having regard to the size of the present award, there were adequate and effective domestic safeguards, at first instance and on appeal, against disproportionate awards which assured a reasonable relationship of proportionality between the award and the injury to reputation.”
Again, at para. 122 it stated:-
“It is also true that Irish law required damages to be fair and reasonable in the circumstances and not to be disproportionate to the injury to reputation suffered.”
And, finally, at para. 126 it adopted the meaning of “proportionality” as set out by Hamilton C.J. in de Rossa.
24. Accordingly, whilst if it became necessary to try and navigate the award in this case through each and every limb of the test identified in Heaney, I would attempt to do so, nonetheless, in my view this is not required as neither Irish law nor that pronounced by the E.Ct.H.R. for Convention purposes demands such rigid scrutiny. The end result therefore is that in the present context, for both trial and appellate court, the correct meaning of “proportionality”, which is synonymous with the concept of “due correspondence”, is that as outlined above. Finally, may I add that all would benefit greatly from a little more contextual precision when referring to this concept.
De Rossa: Current Law and Practice:
25. This Court was invited in de Rossa to stand down and erase from the law books some deep rooted traditional principles, established over centuries, and in their place to create a “fundamental and radically” altered regime for charging juries on the issue of damages. Amongst those were the matters referred to at paras. 52 and 53 of this judgment; in addition, the court was asked to endorse the following new practices, all of which were derived from English authorities:-
(i) That both counsel and judge could give to the jury an indication, perhaps more precise than general, of what compensation, in their respective views, the case at hearing should attract;
(ii) That the jury should be appraised of any awards made or upheld by the appellate court in previous defamation actions, obviously to create a scale impression in their minds for the purposes of the case at hand; and, thirdly
(iii)That the jury, for exactly the same reasons, should also be informed of the then prevailing upper limits of awards either made or approved by the courts in personal injury actions.
Subject to Denham J. dissenting on some of these issues, the remaining members of the court unanimously agreed to reject each of these submissions. Its decision was delivered on the 30th July, 1999.
De Rossa: Challenged in O’Brien:
26. At the O’Brien hearing, less than twelve months later, this Court was invited, strenuously it would appear, to conclude that de Rossa, in the above and in other key areas, was wrongly decided. That might be regarded as rather surprising, even daring given the timeline involved; nonetheless, the submission was made and was entertained by this Court in accordance with its established jurisprudence, such as that set out in Attorney General v. Ryan’s Car Hire Ltd [1965] I.R. 642 and Mogul v. Tipperary (North Riding) County Council [1976] I.R. 260 and which was recently discussed in my own decision in D.P.P. v. J.C. [2015] IESC 31 (15th April, 2015). In a majority judgment, delivered by Keane C.J., this invitation was rejected but only on the basis that it could not be said that the views of Hamilton C.J. were “clearly wrong”; therefore the test laid down in the decisions as cited had not been met. Accordingly, the award in O’Brien was then considered in the context of the legal principles above outlined, being those applicable in this jurisdiction uninfluenced by the jurisprudence from the courts of England and Wales. However, as the judgment of Keane C.J. might possibly give the impression that but for the principle of stare decisis, some members of the Court might have differed from the majority in de Rossa, I would like to make some brief observations on a number of these key issues.
27. Before dealing with such matters, being those referred to at para. 25 supra, it should also be noted that, in the opinion of Keane C.J., there was nothing said in de Rossa which prevented the Supreme Court, as part of its review jurisdiction, from referring to previous awards made in other defamation cases, adding as the only caveat that:-
“… [n]o doubt a degree of caution is called for … since in cases of defamation, more perhaps than in almost any action in tort, the facts which have to be considered by the jury very widely from case to case.” (p. 18 of the report)
A passing reference was also made by the Chief Justice to awards in serious cases of paraplegic or quadriplegic injuries (p. 20). However, Geoghegan J. in his dissenting judgment was strongly of opinion that very little value could be obtained by such an exercise, even one confined to defamation cases, a view with which, for the reasons I am about to outline, I fully agree.
Auction Advocacy: What is the Case Worth?
28. I do not accept for a moment the proposition that counsel should be able to suggest to the jury what, in his or her view, the case before them is worth. It would be auctioneering advocacy at its worst. The suggestion in John v. MGN [1997] QB 586 (“John v MGN”) (pp. 615-616) that counsel will exercise self-restraint so as to avoid the appearance of greed, on the one hand, or parsimony, on the other, is much too reliant on the objective detachment of counsel, and in any event overlooks the pressures on - and indeed the responsibility of - legal practitioners to obtain the best achievable outcome for their client. Therefore, in my view such a suggestion lacks widespread utility and offers scant comfort in this regard.
29. Moreover, in such circumstances the judge quite evidently would also have to address that issue. What is he to say with two responsible counsel before him? Comment or not on the figures given, or ignore them, or simply give his own view? Even with the great trust which I have in juries, confusion and uncertainty would surely follow. One must add that such a state of unease would inevitably be compounded by a judge’s direction, which all agree must also be given, that the jury can disregard all such figures if they so wish. The resulting scene in this scenario is not difficult to conceptualise. I would not therefore entertain such a practice.
30. If counsel should not embark on such a course, it would follow that a judge likewise should not do so: he/she should not in my view offer any opinion on the value of the action which is at hearing before him or her. Consequently, I see no merit in this proposal.
Comparison Awards: Re: Personal Injuries:
31. The suggestion that juries could be referenced to awards made in personal injury actions is one which I entirely reject and in that regard I would endorse the views expressed on this point by Hamilton C.J. in de Rossa. I would go further, however, and seriously question the utility of such an exercise even by an appellate court which is being asked to say whether an award is too high or too low, as the case may be. There are many reasons at the level of principle why I think this is so, as well as the enormous practical difficulty in making any workable comparison between the two, even where all permissible adjustments have been made.
32. In the first instance a small point is that notwithstanding the abolition of juries for all remaining civil actions, save for some exceptions not relevant (s. 1 of the Courts Act 1988), the Oireachtas has seen fit to retain the traditional role of juries in defamation cases.
33. This role, relative to damages, has been highlighted in judgments for so many years that the citations given (paras. 49-59 infra) represent but a small fraction of the entirety. Quite evidently the legislature had been fully aware of the procedure by which such cases are conducted, including the practice of what a jury may and may not be addressed on, by either counsel or judge, on such an issue. Likewise it must be taken to have envisaged the resulting changes which the 1988 Act was likely to bring about in the approach to damages assessment in personal injury actions. Judges are trained lawyers whose armoury very much includes precedent, comparisons, ranges, scales, adjustments and so forth: they give reasons which can be understood and if necessary can be analytically surveyed. Jury awards are self-evidently so different. No legislative intervention is applicable to this case. Consequently, though the point may be small, nonetheless, in my view, it is a significant one for all pre-2010 cases.
34. The second point relates to the underlying basis upon which damages are assessed in defamation cases, which is quite distinct to that which drives awards in personal injury actions. In addition to special damages being ever present in such actions, indeed in serious cases frequently outstripping all other elements of compensation, where aggravation is rarely if ever seen, general damages are heavily influenced by policy considerations, injected from varying sources, which is not the case, at any level, with the instant type of action.
35. In Uren v. John Fairfax & Sons Pty. Ltd. 117 C.L.R. 118, 150, Windeyer J. pointed out, rightly in my view, that the defamed person obtains compensation “because of” and not “for” the reputational damages suffered by him. The learned judge continued:
“For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
36. Having quoted with approval this particular passage, Lord Hailsham LC, in Broome v. Cassell & Co. Ltd. [1972] AC 1027 (“Broome v Cassell & Co.”), stated at p. 1071:-
“This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter... What is awarded is thus a figure which cannot be arrived at by any purely objective computation.”
37. Lord Donaldson, in Sutcliffe v. Pressdram Limited [1991] 1 Q.B. 153, having given two reasons why the scales of damages in both actions are “quite different”, stated:-
“Accordingly, it is to be expected that awards in personal injury cases will be in no way comparable with awards in libel cases. In considering any appeal of this nature, an appellate court is bound to disregard its experience of the assessment of damages in personal injury cases…” (p. 176).
I agree with both the reasons stated and the conclusion reached in these decisions.
38. In paragraphs 63 and 64 of this judgment I have attempted to list, under the heading of “What Damage is Cognisable”, a variety of factors which, depending on circumstances, may fall to be assessed in a defamation action; no doubt several others may also arise from case to case. From even a casual glance at such matters, it is readily apparent that virtually not a single such reference would feature in personal injury awards. It is thus difficult to see how one cause of action can usefully be equated with the other in the context of the point at issue.
39. In any discussion on this topic it is only the general damages element of a personal injury award which is compared with the entirety of a defamation award. But as stated, general damages are but one aspect of an injured party’s overall package in cases such as, for example, a negligence action against a driver of a motor vehicle, or against a defaulting employer, or against a hospital/doctor who has conceded liability in a catastrophic brain injury case. Frequently, certainly in the most serious type of case, such will be but a small proportion of the total amount: this will be the case even when taking €250,000 - €400,000 as part of an award of some €5 million, €7 million, or even perhaps €12 or €13 million. Even with non-serious injuries the plaintiff may have pecuniary losses, past and future, which greatly exceed his claim for pain and suffering, loss of amenity etc. In all such cases, however, it is of course the total sum which represents his compensation and not simply one single aspect of it. On the other hand, judicial experience tells us that it is notoriously difficult for a plaintiff to verify special damages in a defamation action. In this regard, therefore, there is a striking difference not only between the component elements of each case, but also between the final awards which may ultimately result.
40. I have not yet made any detailed reference to the policy influences which encroach upon the principles of assessment in personal injury awards. I will shortly refer to some of these, but only briefly. Before doing so, however, a key and a most unique component of defamation awards is deserving of separation from the main factors listed elsewhere in this judgment. I am referring to the necessity to publicly vindicate the reputation of the defamed: this is not simply a reference to the outrage which the publication has directly caused him to suffer, or to suffer because of his family, friends, and colleagues’ knowledge of it, but is also a reference to circumstances where any random member of the public, casually met, indiscriminately blurts out to the world at large that “there is no smoke without fire”, or words to that effect. He must be able to demonstrate, there and then, that there was nothing in the publication: that it was baseless and that it should never have seen the print of paper. He must be able to instantly dispel the underlying odium which is inherent in the stranger’s utterance and immediately reassert his self-esteem and dignity. “There is my award: it speaks for itself”. Such a chance encounter may occur the following day, the next month, or years hence; whenever it does happen, the defamed must constantly be vigilant and if and when the occasion should arise, he must decisively respond. Nothing remotely like this is contemplatable in a personal injury award.
41. This lifelong concern, even if mostly subdued, will forever smoulder; its importance as a compensatable element is readily acknowledged in defamation restitution, as many cases show. One such case was again the judgment of Lord Hailsham L.C. in Broome v Cassell & Co, where it was stated:-
“In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position that he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.” (p. 1071).
I respectfully agree.
42. The policy considerations to which I refer and which very much inform personal injury awards have been touched upon, to varying degrees of depth, in a number of decisions both here and in the United Kingdom. These influences, which have no affinity with defamation cases, make any comparison between the two a topic of much unease even for those who favour a closer alignment. In The Gleaner Co Ltd & anor v Abrahams [2004] 1 AC 628 at 645, Lord Hoffman discusses some of these factors and considers whether there is any functional similarity between both causes of action. Having examined these issues, and having acknowledged what is undoubtedly true, namely that different opinions exist on this point (McCarey v. Associated Newspapers Ltd & Ors [1965] 2 Q.B. 86 and John v. MGN), Lord Hoffman continues:-
“Few of these considerations of equity and policy apply to awards in defamation cases. On the other hand, defamation cases have important features not shared by personal injury claims. The damages often serve not only as compensation but also as an effective and necessary deterrent. The deterrent is effective because the damages are paid either by the defendant himself or under a policy of insurance which is likely to be sensitive to the incidence of such claims … Awards in an adequate amount may also be necessary to deter the media from riding roughshod over the rights of other citizens. In Kiam’s case Sedley LJ said, at p 304, para 75:
‘in a great many cases proof of a cold-blooded cost-benefit calculation that it was worth publishing a known libel is not there, and the ineffectiveness of a moderate award in deterring future libels is painfully apparent … Judges, juries and the public face the conundrum that compensation proportioned to personal injury damages is insufficient to deter, and that deterrent awards make a mockery of the principle of compensation.’” (Emphasis added) (p. 646).
I fully agree with the entirety of this passage of the judgment, as I do with the added observation that whether personal injury awards should be referenced to defamation decrees is a question of policy and not of legal principle. On that basis the Privy Council held that the Court of Appeal in Jamaica, which had made the reference, did not err in law in its refusal to alter the existing practice in that country, which was not to make any reference to personal injury awards before the jury.
43. Against this background I must say that I have never understood, certainly not in any legal sense which I can ascribe to, why such efforts, constrained and artificial as most are, have been continuously made to align personal injury awards with defamation actions. From insult to vindication, both are vitally different: on every aspect of the liability side, likewise on the injury side, and most definitely on the damages side. Why not say so and acknowledge the obvious? Simply put, they are indeed incomparable. Personally, therefore, I derive no benefit from cases such as Yang Yun v. MIBI [2009] IEHC 318 (a personal injury action) or M.N v. S.M. [2005] 4 IR 461 (a sexual abuse case) in my assessment of the instant appeal. Finally, I agree with Dunne J. in her judgment in this case that the latter type of action is clearly akin to a personal injury claim, as I evidently and clearly do that such claims have no comparative utility with defamation actions (see paras. 38-41 of the judgment of Dunne J.).
44. Of course, this does not mean that the amount of damages in defamation can be endless: far from it. But the parameters within which the acknowledged test must be applied, and the underlying reasons therefor satisfied, should be developed within the jurisprudential area of this particular type of action, even if touched, as they might well be, by overarching concerns of a general nature: subject to that, however, awards should not otherwise be influenced by personal injury actions. I thus fully agree with de Rossa in this respect.
Comparison Awards: Re: Defamation Cases:
45. The reason why I doubt the wisdom of comparing awards in previous defamation cases is not based on any principle or the like, but is one firmly grounded in practical utility, a view also espoused by Geoghegan J. in O’Brien, where the learned judge referred to “the sheer practical difficulty of comparison” (p. 43 of the report). How can one compare the T.D. Mr. Barrett with Mr. Denis O’Brien, or with Mr. McDonagh S.C., as he then was (McDonagh v. News Group Newspapers Ltd (Unreported, Supreme Court, 23rd November, 1993)? How can Mrs. Leech in any way be positioned amongst or within this group? What does ‘tweaking a beard’ have in common with a politician in active public life who is accused of having been involved in serious crime and of supporting anti-Semitism and violent communist oppression? How can one compare any of the above with a married woman who has a consultancy business in the private sector and who is accused of having an extra-martial affair with a senior government Minister? Reference could be made to multiple other examples from real life cases which in every aspect of their legal characteristics are entirely dissimilar from any of the situations as mentioned.
46. In addition, within this very narrow group of cases some simple adjustment, on either side, can change the entire focus of the damages direction. Let’s suppose that Mr. de Rossa was not at the time actively engaged in trying to form a government; or that Mr. Denis O’Brien was not simply a “new and emerging major figure in the business world” (Geoghegan J. at p. 39 of the report), but rather had by then achieved the public standing which arguably he has later acquired; or that Minister Cullen had simply been a low ranking official in a local authority; or that Mr. McDonagh S.C. had already been appointed to a senior judicial post? A variation in any of the following factors would likewise have a similar effect, namely the nature of the publication, the depth of both personal and professional intrusion which the publication caused, and the conduct of the defendant, to identify but some. In every case virtually all of the critical components will be separate and distinct, one from the other. Therefore, in my view, even with the greatest feasible care, I find it difficult to see how, if one remains true to the obligation of compensating that particular plaintiff, in respect of that particular publication, for that particular injury, this can be achieved or even influenced by the cross referencing as has been suggested.
47. If there is to be any real value in this exercise, the analysis must be “factor comparative” and “factor weighted”, otherwise the entire exercise is apt to mislead. It is entirely uninformative simply to say that having considered ‘this case’ or ‘that case’ the award under review is too large (Crofter v. Genport Limited (No.2)). The allegation in that case, which the corporate counter claimant sought compensation for, arose out of false information conveyed on behalf of the plaintiff to the police authorities in the United Kingdom that the effective owner of Genport and his brother, a Chief Superintendent in An Garda Síochána at the time, were actively assisting the IRA in laundering drug money. This was but one of several actions between the parties, all bitterly contested over several years against the background of a landlord and tenant relationship in respect of a well known hotel in the City of Dublin. The appeal under review, from an award made by a judge sitting alone, was allowed in that the exemplary damages aspect of it was set aside as being excessive. How the reference to Barrett, McDonagh or de Rossa could have helped in determining that issue remains unclear (p. 37 of the report).
48. Despite these misgivings, however, I will have a look at some of the relevant case law a little later in the judgment, not for any specific guidance on how this appeal should be determined, but rather at a general level so as to highlight certain aspects of those decisions.
The Jury: The Review Test
49. The jury has a twin function in defamation cases. Firstly, it decides on each contested element regarding liability, subject only to the judge being satisfied that the words uttered are capable in law of having a defamatory meaning: (Duffy v. News Group Newspapers Ltd [1994] 1 I.L.R.M. 364). Secondly, it assesses damages in the event of liability being established. Traditionally the law has given the jury wide scope on the damages front. The reason for this is that “defamation is rooted in community values”. In effect, the jury, when acting as such, is “representative of the community” (McMahon and Binchy, Law of Torts, 4th Ed. (Dublin, 2013) at para 34.329). This perspective, in my opinion, holds good not only for the issue of “libel/no libel”, but also for the quantification of damages. Accordingly, whilst not “at large” on such issue (a phrase in any event frequently misunderstood), a jury’s award nonetheless has an eminence and distinction of significantly higher value than that attaching to other awards, even those made by juries in non-defamation cases.
50. On the liability side, Walsh J. said of the jury’s role in Quigley v. Creation Limited [1971] I.R. 269 at 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 … In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of.”
McCarthy J., in Barrett (p. 35), was quite satisfied that such observations apply equally to the question of damages; with the learned judge stating:-
“The law reports abound with judicial tributes to the particular respect that must be accorded to the verdict of a jury in libel actions. [Walsh J’s observations in Quigley v. Creation Limited [1971] I.R. 269 at 272] apply no less to the assessment of damages than they do to the issue of libel or no libel.”
51. Further support for this view can also be found in the judgments of other members of the court in Barrett, including Finlay C.J., who, in the course of his judgment, at p. 19 stated:-
“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, whilst the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.” (Emphasis added)
See also McDonagh v. News Group Newspapers Ltd (Unreported, Supreme Court, 23rd November, 1993).
52. The particular status of the jury was again referred to in de Rossa, where Hamilton C.J., who refused to depart from the traditional guidelines given to juries, and having endorsed the above passage of Finlay C.J. in Barrett, continued:-
“The “sanctity” of such awards is recognised in the passage from the judgment of the [Master of the Rolls] in John v. MGN Ltd [1997] QB 586 where it is stated at p. 616 of the report as follows:-
‘The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury makes an award outside the upper or lower bounds of any bracket indicated and such award is the subject of an appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.’ (Emphasis added by Hamilton C.J. in de Rossa)
Both judgments [Barrett and John v. MGN Ltd ] recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.” (p. 462 of the report)
53. Finally, Hamilton C.J., in rejecting the suggestion that larger awards should be subjected to a more searching type of scrutiny than in the past and in refusing to adopt a new appellate test, namely “could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation” (Rantzen v. Mirror Group Newspapers (1986) Ltd. and Others [1994] Q.B. 670), offered the following justification:-
“If such were the test to be applied, it would remove from the jury ‘the very unusual and emphatic sanctity’ referred to by Finlay C.J. and the giving of ‘real weight’ to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.
Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all of the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.” (p. 463 of the report)
See also p. 446 of the judgment where it was said that the “assessment of damages was peculiarly the province of the jury in an action for libel.”
54. These clear and decisive observations regarding the respect which attaches to a jury’s award must not be lost sight of; such an award cannot be disturbed on appeal simply because the Supreme Court might think that the award is too high or too low, as the case may be. Again, see the judgment of Geoghegan J. in O’Brien at p. 42. Appeal judges, when conducting such a review, are not the jury and cannot assume the jury’s role. Intervention will be justified only where the award obviously falls outside permitted parameters which, in determining, the court must have due regard, inter alia, to the uniqueness of the jury’s representative function in this particular judicial process. Just as libel/no libel is a matter of opinion which may vary widely but reasonably (Walsh J. in Quigley), so too may the jury’s appraisal of what sum is necessary to reflect the injury suffered. Therefore, an award will not be disturbed easily or second guessed purely to fine tune it. As put as far back as 1879, by Cockburn CJ., “… a Court ought not, unless under very exceptional circumstances, to disturb their verdict” (Phillips v. South Western Railway Co. (1879) 4 Q.B.D. 406 at 408).
55. In addition, it is obvious to say, but nonetheless needs to be said, that damages cannot be assessed by some mathematical formula or statistical model absorbing the multiple variations which arise and which, having duly assessed and weighted each factor of relevance, arrives at an award immune from appellate scrutiny. There is no series of preset rules which provide a just answer in all cases. Given the diversity of each case, all that can be said is that once the decision maker has had due regard to all material facts and in its award reflects what is a fair, reasonable and proportionate response to the wrong caused and the harm done, both on the personal and the public side, the ultimate figure will not be considered or set aside as being disproportionately high.
56. Could I add that whilst there is undoubtedly an element of subjectivity involved, such element is conditioned on the one hand by the requirement to reflect in the award and on review each of the component parts of the wrongdoing, as well as the wrongdoing as a whole, and on the other hand is constrained by the necessity of fairness and proportionality. Once the resulting award is within the permissible range it will not be refined at the margins. There is scope for a difference of views within that range, which means that unless the amount falls outside it, the same will be regarded as justified.
57. On establishing liability, therefore, a person is entitled, under the heading of general damages, to receive such sum as will appropriately compensate him for the wrong done, the harm inflicted and damage suffered. This level of restitution, at least to my mind, is conceptually entirely separate from any claim for aggravated damages and evidently is also different from both exemplary damages and special damages. However, in practical terms, as the case law shows, factors which aggravate are indifferent to boundaries: they run right into the slipstream of their compensatory brothers and are indistinguishable from them on occasions. It has therefore become the practice to take all such matters together and to award a single sum to collectively represent their impact.
58. In conducting this exercise, a principle of high importance which permeates the assessment process at every level is that whilst the law, at both constitutional and Convention level, declares that every person has the right to his good name, on the one hand, and also guarantees liberty for the citizen to freely express their convictions and opinions, on the other, neither is absolute and neither one at the level of principle takes precedence over the other. In certain situations each must accustom itself to its neighbour and adjust accordingly. Even with such accommodation, however, one thing is clear: no one has the right to defame another. No law gives that right and no man has that right.
59. However, notwithstanding the status of its damages award, there is no doubt but that in an appropriate case a jury’s verdict can be set aside as being unresponsive to the test above outlined. If judged as unfair or as lacking the appropriate balance between the wrong and the causative effects, it will not be allowed to stand. All awards are to be evaluated in the same manner: no greater scrutiny should be given to one appeal over another, no matter what amount is involved. A relatively minor sum may confer on some people the required level of vindication, but for others a much larger amount may be necessary. Principles of law, rooted in constitutional values for both publisher and defamed alike, are not two-tier in structure: they travel not on the highway for one and the boreen for the other. Equality prevails and the same assessment criteria must apply. There is but one approach in all cases.
The Convention:
60. It is of interest to note that the national practice on the assessment of damages was examined in Independent News and Media v. Ireland (16th June, 2005), where the E.Ct.H.R. was satisfied that the Irish test, including the specific requirement that the award must bear a reasonable relationship with the injury suffered (paras. 20-24 supra), met with the conditions laid down in the Convention and with the Court’s jurisprudence in that regard. Such jurisprudence has been developed in a series of cases where the Court has been called upon to review the compatibility of domestic measures, regarding the right to protect one’s good name and, if defamed, to obtain compensation therefor, on the one side, and the right to freedom of expression on the other. Having conducted an extensive analysis the E.Ct.H.R. concluded, in the case cited, that there were adequate safeguards in existence to achieve an appropriate balance between the conflicting rights given in Article 8 and Article 10 of the Convention. There was therefore no necessity to adjust Irish law in this regard.
61. That decision can be contrasted with the judgment given in Tolstoy Miloslavsky v. UK (13th July, 1995). In that case the plaintiff had been awarded £1.5m in respect of an allegation that he had been responsible for handing over Cossack and Yugoslav prisoners of war to communist forces in the knowledge that they would be murdered. The sum, at the time, was three times higher than any previous defamation award made in the English Courts. On review the European Court of Human Rights held that given the amount involved it was of striking significance to note the absence of any adequate or effective safeguards in domestic law against a disproportionately high award. Essentially on that basis there had been a violation of the defendant/applicant’s rights under Article 10 of the Convention.
62. The Tolstoy Miloslavsky decision was given at a time when the relevant review test in England was that intervention was permitted only where the award was “so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally.” The essential reason for the different conclusion reached by the Court in Independent News and Media compared with Tolstoy Miloslavsky related to the review test in this jurisdiction, which included the a concept of proportionality.
What Damage is Cognisable?
63. As stated, compensation in a case such as this has the capacity of embracing multiple and diverse elements. It can, as the authorities show, include certain factors which perhaps are more frequently dealt with separately as aggravation, such as the defendant’s response to the claim as asserted. Whilst it is not possible to identify all such matters which potentially might come within the remit of general damages, as so understood, it can however confidently be said that its parameters in defamation suits are not as tightly drawn as in other proceedings.
64. The following are some of the factors which will require consideration in any assessment of damages in this type of case, to be viewed in the context in which such matters have arisen:-
(a) The extent of the wrong, of the harm inflicted and of the injury done;
(b) The damage to one’s reputation and standing in the eyes of reasonably minded members of the community;
(c) The restoration of that reputation and standing to a degree that will withstand any future challenge by any random member of the public who suspects that there is “no smoke without fire”;
(d) The degree of hurt, distress and humiliation suffered and any other aspect of one’s feelings that has been affected;
(e) The extent of the intrusion into one’s personal, business, professional or social life, or any combination thereof, to include the invasion of one’s privacy;
(f) Any other harmful effect, causatively resulting from the wrongdoing, not above mentioned;
(g) The gravity of the libel;
(h) The extent of the circulated publication;
(i) The response and reaction to the allegations as made; retraction and apology; re-affirmation of truth and justification - even with different meanings to those as pleaded;
(j) The overall conduct of the defendant, including those examples identified in Conway as constituting aggravation ([1991] 2 I.R. 305 at 317), and even extending to matters of exemplary condemnation on occasions; and
(k) Any other factor specific to the individual case which falls within the parameters of the principles as outlined.
Additional Comments on Four Factors:
65.
(i) It has been said that the most important matter in the assessment of damages is the gravity of the libel (Hamilton C.J. in de Rossa applying John v. MGN [1997] QB 586 at 607). Whilst undoubtedly true at one level, the severity of reputational damage, the loss of standing in the eyes of the public and the resulting personal, business and social effects on the injured party are no less grave than the intensity of the libel itself.
(ii) The assessment of gravity, whilst hugely significant at a public or general level, is equally significant at the personal level. As again stated in John v. MGN, “the more closely [the libel] touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be” (p. 607). I entirely agree with the insightfulness of those comments but would add a context, not applicable in England and Wales, which is that all or almost all of the rights likely to be affected are to be found in this jurisdiction within a constitutional setting also, thereby increasing their seriousness if and when causatively established.
(iii)The extent of the publication is also highly relevant. The wider the circulation and the greater the geographical area covered, the more damage is likely to have been caused; such a conclusion can pre-emptively be assumed. Further, a defendant whose form of publication is or is likely to be electronically transmitted or re-transmitted, even by others, must bear the consequences of his choice.
(iv)The response and conduct of the defendant, on complaint being made, will be a material matter. Such conduct is likely to be viewed differently depending on the reaction. Defending a publication to finality may be a right but if unsuccessful the relentless pursuit of the published insult may have serious financial consequences for the pursuer. On the other hand, an immediate withdrawal of the offending material, coupled with the implementation of appropriate measures to correct the falsity and repair the damage, will significantly differentiate one type of response from the other.
The Instant Case:
66. The appellant submits that in reviewing the jury’s verdict, this Court should have due regard to awards made in other similar actions, as well as those on the personal injuries side. It is said that such an approach at both levels was endorsed by Keane C.J. in O’Brien (at p. 20 of the report). With regard to previous libel actions, it is claimed that these can at least offer guidance, if not act as a benchmark for the appropriateness of the award in the instant case. In particular, the appellant draws attention to the fact that in 2001 the Supreme Court set aside an award of IR£250,000.00 in the O’Brien case as being excessive. Furthermore, it is pointed out that at present there is a cap of €450,000.00 for general damages even in the most serious quadriplegia/paraplegia type cases. (Magi Yang Yun v. MIBI [2009] IEHC 318). Therefore these figures must be relevant to the instant case.
67. Relying on the reference to the cap on personal injury awards, but more particularly so on the de Rossa and O’Brien decisions, whereby this Court described the libel in each case as being of the “grossest and most serious type”, it is submitted that even if the award to Mr. de Rossa of IR£300,000.00 in 1999 was not disturbed, nevertheless by any comparative process the amount in the instant case must be regarded as excessive.
68. The respondent for her part claims that any reference to awards in other defamation actions needs to be treated with great caution, and even more so when a cross reference to awards in personal injury cases is suggested. The observations of Hamilton C.J. in de Rossa at p. 459/460 are relied upon, as is the conclusion of the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) Ltd [1994] Q.B. 670 (“Rantzen”), which the learned Chief Justice referred to, with approval, at p. 454 of the report. Finally, she also relies upon Lord Hoffman’s analysis on the same point in Gleaner Company Limited & Anor v. Abrahams [2004] 1 AC 628.
69. The role of the jury in a case such as this is also emphasised by Mrs. Leech, who makes the point that even outside the ambit of defamation actions, compensatory damages can include an element of aggravated damages. She refers to a comment by Hardiman J. in Shortt v. Commissioner of An Garda Síochána [2007] 4 IR 587 at 661 where the learned judge said:-
“Aggravated damages, on the other hand, are compensatory damages increased by reason of the factors that are set out in the judgment of Finlay C.J. in Conway v. Irish National Teachers Association [1991] 2 I.R. 305.”
It is submitted on her behalf that the libel in the instant case is an extremely grave one, given the series of articles which were published and the sustained and deliberate campaign conducted against her, over the timescale above set out. Moreover, the appellant showed no remorse whatsoever: rather, it elected to maintain a plea of justification in face of the indefensible, given the plain and ordinary meaning of the material, which it undoubtedly had.
70. It is further said that the words published imputed on her chastity and suggested adultery by her as a married woman; they were also calculated to disparage her in her office, profession, calling, trade or business (ss. 16 and 19 of the Defamation Act 1961 (“the 1961 Act”)). Therefore her personal character, as well as her reputational integrity as a business person, was severely impaired. In the overall context, it is claimed that the material published suggested that the alleged affair was engaged in so as to advance her business career and that without such a relationship she would not have been capable of meaningfully acting as a communications consultant. For a professional and business lady, such is grossly degrading.
71. For the reasons above given (paras. 31-44 supra) and hereinafter added to, I do not accept the existence of any comparative role relative to personal injuries and though not rejecting the invitation to consider other defamation cases, which I will in a moment, I also have strong reservations in that regard (paras. 45-48 supra; paras 75-82 infra).
Additional Comments / Personal Injury Awards:
72. Whatever can be said in favour of referring to other libel actions, much less in my view can be offered in support of any serious attempt to compare personal injury awards (paras. 31-44 supra). Whether the passing reference to what damages can be obtained in a paraplegic or quadriplegic case, made by Keane C.J. in O’Brien (p. 20), can be taken as an endorsement of such an approach in general is open to serious doubt, particularly in light of de Rossa, where the court preferred the reasoning of Rantzen to that reached in John v. MGN. This view had the effect of endorsing what Lord Hailsham pointed out in Broome v. Cassel & Company [1972] AC 1027 at 1071, when drawing the distinction between damages in both types of action:-
“What is awarded is … a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are said to be at large.”
73. Moreover, de Rossa, on this topic, also referred to the following passage from Rantzen:-
“We have come to the conclusion, however, that there is no satisfactory way in which the conventional awards in actions for damages for personal injuries can be used to provide guidance for an award in an action of defamation … it seems to us that damages for defamation are intended at least in part as a vindication of the plaintiff to the public … We therefore feel bound to reject the proposal that the jury should be referred to awards made in actions involving serious personal injuries.” (p. 454 of the report)
74. There are several good reasons for this, which are referred to at paras. 31-44 supra. In addition, although it can be said at one level that every personal injury action is different, nonetheless it is also true to say that the variables in most cases can be readily identified and adjustments can be made so that the vast majority of awards can be rationally associated, one with each other. This is not so with libel actions, as in every sense of the term each is different from the other. Secondly, in addition to compensating a plaintiff for injured feelings, the purpose of restitutio in integrum as applied to libel actions is much more embracing. It has the added significant requirement of vindicating a person’s good name in the eyes of the public. In other words, if ever challenged as to the validity or truth of the libel, a plaintiff can point to the award as demonstrating the falsity of the publication. No such aspect exists in personal injury actions. Thirdly, there is also, as previously stated, a subjective element in assessing what is appropriate for a libelled plaintiff, whereas such is not the case with personal injury actions. In this regard I endorse the view of Geoghegan J. in O’Brien at pp. 42 and 43. Consequently, in my view, I am most reluctant to be influenced by awards in this area of the law.
Additional Comments / Defamation Cases:
75. What then can be deduced from previous defamation decisions on reviewing the jury’s award in this case?
76. Barrett was a case where the plaintiff, a sitting Fianna Fáil TD, grounded his defamation action on what the Evening Herald printed in its edition of the 8th February, 1983, with the relevant part appearing as follows:-
“There were savage scenes as TDs left Leinster House early today. Michael Barrett TD, a Dublin Haugheyite, leaned over and pulled at my beard and said ‘You thought you’d dance on his grave.’”
The immediate background to this piece was a meeting of the Fianna Fáil Parliamentary Party the previous evening, where a resolution to remove Mr. Charles Haughey T.D. from the leadership of the party had been defeated. The plaintiff, Mr. Barrett, received damages of IR£65,000.00 from the jury but the award was set aside on appeal. In his judgment, Henchy J. said that:-
“A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into an appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected.” (pp. 23-24 of the report)
The learned judge continued:-
“To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous or premeditated criminal conduct would be astronomically high.” (p 24 of the report)
77. The reference to reducing the libel to the ‘actuality of the circumstances’ is intended to help reduce the risk of an excessive award. The reference to ‘appropriately positioning’ what was said on the occasion in question relative to what might otherwise have been said is simply another way of expressing a view as to where the publication should be placed on the ‘seriousness scale’ relative to that particular type of libel.
78. The published material in de Rossa was described by Hamilton C.J. at p. 464 of the report as follows:-
“To publish of any person words meaning that he or she was involved in or tolerated serious crime and personally supported anti-Semitism and violent communist oppression would, if untrue, constitute the gravest and most serious libel: it is hard to imagine a more serious one.
To publish such words in relation to the plaintiff, a politician dependent on the support of his constituents and his colleagues and at a time when he was engaged in negotiations, as was well known to the defendant at the time of publication, which might lead to his participation in government, renders such publication more serious and grave, particularly when they might have interfered with his chances of participation in such government.”
Much emphasis therefore seems to have been placed on Mr. de Rossa’s occupation as a politician and on the political activities which he was engaged in at the time of the libellous publication, namely negotiating to enter government. Furthermore, the classification of the libel by the learned Chief Justice was once more his descriptive way of saying how serious it was. Quite evidently, in view of the rest of his judgment, this reference could not have been for any comparative purpose.
79. Much the same emerges from McDonagh v. News Independent Group Limited, wherein, upholding an award of £90,000 to the plaintiff, who was a practising barrister at the time, Finlay C.J., having specifically highlighted the plaintiff’s occupation, said:-
“…I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right minded people, would be considered significantly more serious.”
80. In O’Brien, Keane C.J., in a case where the allegation was that the plaintiff had paid a Government Minister €30,000 by way of a bribe for obtaining a radio license, said:-
“The libel complained of [in de Rossa] could not have been of a more serious character, alleging, as it did, that the plaintiff supported some of the vilest activities of totalitarian regimes of the twentieth century and was personally involved in and condoned serious crime. On any view, that is a significantly more damaging and serious libel than the admittedly serious statements made concerning the plaintiff in the present case.” (p. 21 of the report)
81. It is undoubtedly clear from this and other extracts of the judgment that this was a comparative analysis between both de Rossa and O’Brien. Even then, however, the learned Chief Justice called for caution when applying any such approach, “since in cases of defamation, more perhaps than in any other action in tort, the facts which have to be considered by the jury vary widely from case to case” (p. 18 of the report). As evidently follows from views previously expressed, I respectfully agree with the urging of caution in this regard: indeed, I do so much more strongly than perhaps what emerges at first sight from the passage as quoted.
82. It is also of interest to note how this particular point was addressed in the majority judgment in this case. Having referred to the relevant case law, including de Rossa and O’Brien, Dunne J., at para. 35, concluded “nevertheless, comparisons with other cases may provide some assistance in assessing the gravity of the libel.” (Emphasis added). If this could be seen as a type of endorsement of Keane C.J. in O’Brien, it must be regarded as heavily qualified and highly tentative.
83. From an overall consideration of these cases what comes through, at best, is that in some very general way the courts have in mind some type of loose cross-referencing regarding the gravity of defamatory statements, but at the same time have left quite untrammelled the jury’s entitlement to assess case-specific issues and to evaluate particular effects individual to each such case. It is also of interest to note that the Court in both McDonagh and de Rossa emphasised the occupation of each plaintiff, presumably so that the defamatory effect of the material published would be evidently visible on the professional side of the claim; naturally a heavy concentration is usually focused on the personal side. Apart from this extrapolation, however, I do not read the cited cases as requiring any greater degree of ranking than which I have just described.
The Libel of Mrs. Leech:
84.
(1) The jury found, as above stated, that the materials published meant that the plaintiff had an extra-marital affair with Minister Cullen. At the time she was married with two children and was also a self-employed communications consultant. He was also married.
(2) Every society has its own set of legal, social, moral and religious values, in many instances developed over a long period of time but in almost all cases being subject to at least some degree of change as society evolves. Therefore, to say of an unmarried person that she had an affair would mean perhaps something less condemnatory today than it would have forty years ago. However, the situation with a married person has arguably not changed so dramatically in this way.
(3) The ethos of family life in this country is one based on marriage: I say this simply because there is no other type of family recognised in the Constitution, a point reaffirmed by the Supreme Court as recently as 2009 (J. McD. v. P.L. & Ors [2009] I.E.S.C. 81). Accordingly, marriage is the legal foundation for this fundamental unit of society, being, as it is described, a moral institution possessing major constitutional rights. It is therefore at the highest level of our legal, social and moral order.
(4) The effect of the material as published is to suggest that the respondent had been unfaithful to her husband, and that her relationship with Minister Cullen had affected his own marriage.
(5) This material was not confined to conduct which could be described only as immoral or as involving infidelity: it directly and in a most profound way attacked the professional and business reputation of Mrs. Leech by making the clear suggestion that she could not have been successful in her chosen business career without having had an affair with an individual who was then an influential politician. In effect, she had such a relationship for commercial gain. This suggestion caused great offence, inflicted considerable business harm and evidently was professionally grossly demeaning for her.
(6) This inextricable link is likely to have added greatly to the deep sense of public outrage which the articles provoked. It is not possible to isolate the allegation that the respondent was having an affair from the manner in which she was depicted to have obtained business. The jury was perfectly entitled to have regard to the harm inflicted on her profession, as such is also part of her general reputation.
(7) It is true to say that unlike de Rossa and O’Brien, the plaintiff was not a significant public figure before the publication of the material in question: such publication, however, in a most dramatic and instantaneous way, entirely changed her profile into one which was not only recognised but actively sought out at a public level.
(8) The conduct of the applicant is also relevant in the assessment of damages. In its defence, unsustainable pleas of justification and responsible journalism were maintained: even from a cursory examination of the transcript, one can evidently see that the line of defence argument involved repeated and continuous imputations of cronyism.
(9) In three of the articles published, various depictions of Mrs. Leech and Minister Cullen were included. In particular, in its edition of the 15th December, 2004, the false and composite image shown was particularly offensive as on any objective interpretation thereof, one could not help but think that the red cocktail dress which Mrs. Leech was wearing had a long, high and revealing slit, extending almost to hip level. This was entirely misleading and was clearly designed to enhance the underlying impression that she and Minister Cullen were having an affair.
Is the Award Sustainable?
85. As the case law shows, many judges have graphically referred to the different libels before them as being at the grossest and most severe level of the defamation chain, whereas others, a typical example of which is Barrett, position the libel at a much more modest level. Whilst I can understand this type of descriptive process, I remain, however, entirely unconvinced of its comparative utility: this for the very simple reason that without significant qualification, I doubt its value. Context in such circumstances is everything. Mrs. Leech is not a political figure like Mr. Barrett or Mr. de Rossa were; she never had, at least before these articles, the national profile of Mr. O’Brien and neither has she ever had his international prominence. The type of slur involved in de Rossa is totally different from that levelled against the plaintiff; neither can bribery be related to adultery and, in particular, adultery for commercial and business gain. Accordingly, I am not at all sure that it is in any way meaningful to say of a libel that it is “grave” or “gross” or even of more telling effect, with the intention of associating the awarded damages with a libel of a totally different notion but classified to the same effect. Provided that this caveat is understood, I am prepared to accept, even if reluctantly, that perhaps some benefit may be obtained from such an exercise but only if applied vertically and then within the same or a similar class of defamatory imputations.
86. Of all the authorities which have been opened to us, none have involved a series of sequential and repeated publications, each by title, content and context adding to the other. In all, over a two week period, the appellant published eleven articles in nine editions of the Evening Herald, which has a daily circulation of about 90,000. The first fed the second, the second fed the third, and so forth: a deliberate press campaign to incite momentum, thereby further undermining the respondent, and building a hue and cry that was to culminate in the public discrediting of her and the destruction of her reputation. The sensationalism of the material in the manner in which it was done could only in fact have resulted in that end. Mrs. Leech, during her trial, gave unchallenged evidence, vividly illustrating the public moral opprobrium which existed at the time: she and her family suffered verbal and physical assaults directly because of these publications. Such matters and the artificially created media frenzy are strikingly absent from Barrett, de Rossa, O’Brien, and indeed from any other case which featured in the instant appeal. Therefore this case is one to be considered essentially in its own right (see para. 105 infra).
87. There is no doubt but that the suggested relationship between Mrs. Leech and Minister Cullen was, as the jury found, baseless, as inevitably also was the added suggestion that the same was only engaged in to further her career. If such allegations had been confined to a single publication, then matters may not have been as confrontational for the plaintiff as they turned out to be. Unfortunately, however, no doubt by way of a strategic policy decision, deliberately and tactically executed, the appellant in a cold and calculating manner decided to attack the reputation of the respondent, and did so in a targeted and sequential way; all inevitably resulting in a crescendo which occurred when public scorn and contempt was at its highest.
88. An exercise of interest would be to document the content of each of these articles; this would readily inform the reader as to how day in, day out, the intensity of the reputational assault accelerated. Perhaps the respondent could have been forgiven for thinking that after one, two or three editions the story might abate, even end, but that was not to be. In all, as I have said, eleven articles were published in nine editions. This entire scenario had what Mrs. Leech described in evidence as a devastating effect on her. In any language, therefore, these events must attract very significant damages.
89. However egregious this defamation was, the damages must however reflect the well established principles above outlined. They must be fair and reasonable having regard to the various interests involved. They must, as the law says, be proportionate. “Proportionality” in this sense is not the concept used to test the constitutionality of a statute or the validity of an administrative decision. It has a meaning more akin to a “rational, objective relationship”, or, for short, “appropriateness”, rather than any other. In reality, such requirement underpins the need for due correspondence and lays down a yardstick of some objectivity, even if in part intuitive, by which one can judge whether the impugned sum is or is not within accepted parameters.
90. In this case, even acknowledging at the highest level of concern, as I do, the damage which these articles have caused to Mrs. Leech, I cannot conclude that the jury’s award could be viewed as fair and reasonable and, in particular, that it can be characterised as proportionate, in the sense above given, to the consequences which these publications had for her, no matter how described. The sum so given in my view fails to reflect the necessary objective relationship between wrongdoing and harm. I must therefore conclude that the award should be set outside as falling outside the appropriate parameters which the principles above described demand, even having made all due allowance for jury sanctity. The verdict as to damages therefore cannot stand.
What Now Follows:
91. This conclusion raises the immediate question as to what further order should be made so as to address the setting aside of the jury’s verdict on the question of damages. There are only two possible options: either to order a retrial and return the assessment of damages to a freshly constituted jury or for this Court, of itself, to undertake that task. Mrs. Leech strongly supported the former; the appellant strongly urged the latter. My conclusion on this issue and the reasons therefor are as follows.
92. Prior to the enactment of the Supreme Court of Judicature (Ireland) Act 1877, the historical position in the common law courts was that virtually all civil actions were heard with a jury: defamation was undoubtedly one such action. (Bradley v. Maher [2009] IEHC 389). Section 48 of that Act specifically preserved the antecedent situation by providing that nothing in the Act should prejudice such a right in respect of actions where, prior to its enactment, it existed. Whilst s. 94 of the Courts of Justice Act 1924 (“the 1924 Act”), abolished that right for liquidated sums, breach of contract and recovery of land, nevertheless the section, otherwise in language quite similar to that of its predecessor, both acknowledged and declared the continuing existence of such right. That remains the situation to this day.
93. In the intervening years it is undoubtedly true that there has been much legislative agitation in this general area. Section 6 of the Courts Act 1971 abolished jury trials in all Circuit Court actions; the follow-up intervention took place in 1988 when, save for a limited number of exceptions not relevant, such mode of trial was likewise abolished in the High Court (s. 1 of the Courts Act 1988). Despite these interventions, however, there has been no change in the historical position relative to defamation actions initiated in the High Court. This preserve, quite evidently, was not per chance: its retention therefore must be considered deliberate and necessarily of value. Whilst its relevance can evidently be seen more in a trial court than at appellate level, nonetheless it would be to miss its significance entirely if this Court did not consider it as a serious factor when deciding as between a retrial and self-assessment by judge only.
94. The Oireachtas also intervened with the appellate jurisdiction of this Court when it re-enacted s. 96 of the 1924 Act (s. 48 of the Courts (Supplemental Provisions) Act 1961). Having provided that an appeal shall be moved by way of motion seeking a new trial, the section goes on to state that:-
“…in any appeal to which this section applies the appellate tribunal may, in lieu of ordering a new trial, set aside the verdict, findings, and judgment appealed against and enter judgment as the court considers proper.”
95. This section was considered in some depth by the Supreme Court in Holohan v. Donohoe & Anor [1986] I.R. 45, which incidentally was not a defamation action, but rather a personal injury appeal. In the three judgments delivered, (Finlay C.J., Henchy J. and McCarthy J.), many diverse views were expressed on a range of issues, such as whether the power to reassess damages, having set aside the verdict of the jury or the judgment of the High Court, was based on this provision, as Gahan v. Engineering Products Ltd [1971] I.R. 30 concluded, or whether that power had a constitutional origin. Indeed, McCarthy J. concluded that where the finding of the trial court is set aside on the issue of damages, then a retrial should be ordered, as in his opinion the Supreme Court had no jurisdiction on either basis to reassess the damages in its own right.
96. The variety of views so expressed are matters which I need not address, as I refer to Holohan only to indicate that in the thirty years since that decision, whilst the Supreme Court has itself re-assessed damages on multiple occasions, it has almost always done so in personal injury cases only, with its practice in the defamation area being strikingly different. In fact, it is I think accurate to say that the Court has shown a marked reluctance to utilise the section in such cases.
97. In Barrett a new trial was ordered, as it was in de Rossa, subject to Denham J. substituting an award of £150,000 for that given by the jury. In O’Brien the Court likewise ordered a retrial, with Denham J. on this occasion “reserving for another [time] the issue as to whether the Supreme Court can substitute an award of damages on appeal.” In that case, the order was otherwise made without debate and in a manner very suggestive of that being the only appropriate course to adopt, with Keane C.J. simply stating “I would allow the appeal and order a new trial of the issue of damages only”. In AE Dawson v Irish Brokers Association (Unreported, Supreme Court, 27th February, 1997, per O’Flaherty J.), again a retrial was ordered without discussion. In Crofter, the Court acted differently: Denham J., with whom the other two members agreed, substituted her own view for that of the trial court in relation to the exemplary damages element of the award. This, however, is entirely distinguishable from the other cases as cited and is explicable by virtue of the fact that the award was made by judge only. It therefore cannot be regarded as in any way a precedent for jury awards.
98. In none of these cases, however, or indeed in any of the other authorities as mentioned, is there any discussion on the reasons why, even if technically available, the option of appellate reassessment should not be entertained. In effect, in all of these cases, once the award had been set aside, it followed almost as a matter of custom and practice that a retrial would be ordered. This is clearly illustrated by the above passage from the judgment of Keane C.J. in O’Brien. The logical reason for this approach seems to be that given the sui generis nature of such proceedings, and the unique role of jury participation, such a course of action, save for some extraordinary reason, is inappropriate.
99. The respondent in this case very much favoured a retrial if the event of the award being set aside should come to pass, as it has. That viewpoint, whilst not decisive, must be accorded serious weight. It is entitled to much greater respect than that of the wrongdoer. Even within the lengthy timeline of this case, and quite patently having considered the trauma, distress, anxiety, uncertainty and obviously the publicity which a retrial would generate, nonetheless such is by far her preferred option.
100. It may be trite to say but it is essential to repeat the obvious, which is that this Court, if it should decide to reassess damages itself, will lack the obvious advantages of the tribunal of fact in observing the witnesses and in assessing and evaluating their evidence. The resulting disadvantage is not however evenly spread across all types of action; indeed even within the same family of proceedings it may vary considerably. In some cases facts may be seriously in dispute; in others the issue may turn on documentary material; and in further cases still the dispute may relate solely to a question of law. Whilst there are some tools available to address this imbalance, including Hay v. O’Grady [1992] 1 I.R. 210, these may not be adequate to satisfactorily overcome the limitations involved. Defamation cases, however, which by definition and process are separate and distinct from the other actions referred to, create significantly greater problems for an appellate court in this regard. The reasons for this are articulated right throughout this judgment.
101. How can a transcript convey the depth of a person’s feelings who has been publicly humiliated; whose sense of esteem and personal worth have been undermined, even shredded in some cases; whose presence even amongst strangers may result in being shunned or rebuffed? How can a cold print give a sense of that person’s hurt, perhaps touching the essence of who she is, of her character and personality, without which her sense of value could well be shattered? I very much doubt that without observing, assessing or listening to the essential witnesses, in particular the successful plaintiff, and without seeing her perform in the witness box, the members of an appellate court, deprived of such a facility, can truly feel the gravity of the injury, of the harm and of the damage for which that plaintiff is fully entitled to compensation. Such is a major handicap of significant proportions.
102. I have laboured, perhaps excessively, about the role of the jury in this type of case: phrases such as “unusual”, “uniqueness”, “exclusive”, “emphatic” and “sanctity” have been used to describe their participation in the process (paras. 49-54 supra). To give serious substance and effect to this recognition, it seems to me that unless the reasons for refusing a retrial are most compelling, then the preserve of that role should be maintained, and that by far the most feasible way of doing so is to order a re-trial. No such reasons to any remotely acceptable standard have been advanced for rejecting the respondent’s submission in this regard. I would therefore order a retrial.
Minority View:
103. I realise of course that this is a minority view within the court and that in the judgment of Dunne J., concurred in by Murray J., the damages have been reassessed and set at €1.25 million. In such circumstances, despite my decisive preference for a retrial, I might offer a view on what the alternative exercise might produce if my first line of approach had been similar to that of my colleagues.
104. So how should this Court position itself in assessing the damages? A jury brings to bear the normal community standards, its views are expected to represent right-thinking members of society, and it plays out this unique function in its assessment of such damages. I see no reason in principle why an appellate court should not endeavour to apply these standards and approach the exercise through the visual instrumentality of the community, which is envisaged in this exercise. Evidently it will suffer from the limitations set out elsewhere in this judgment but, subject thereto, should in general approach the task in this manner.
105. Insofar as referring to awards in other defamation cases should be the choice of the Court or any member of it, I strongly feel that the observation of Geoghegan J. at p. 43 of O’Brien should firstly be applied. The learned judge said: “[b]efore one begins to consider de Rossa v Independent Newspapers plc or any other comparison, it is important in my view that the Supreme Court should thoroughly consider the case before it in isolation of comparisons.” I therefore propose to approach the reassessment of damages in the general manner herein described.
106. As my views on the defamatory nature of the material published and on the causative consequences for Mrs. Leech are fully ventilated elsewhere, it is not necessary to repeat either here. In light of such matters, there can be no doubt but that the damages must be very substantial indeed. To reflect the various interests involved, and having had due regard to the legal principles above outlined, I consider that the sum of €1,000,000.00 should constitute the award in favour of the respondent. Whilst I acknowledge that there is some intuitive element in this, I should also point out, as I have done elsewhere, that there are also many substantial constraints of an objective nature involved. In arriving at this sum I have endeavoured to reflect both. Finally, I have not considered it necessary to refer to or to rely upon any alleged comparator in this context. In fact, I am quite satisfied that none of the authorities cited can, even with appropriate adjustments, be rendered comparable to the salient features of the instant case (see para. 83 supra). Accordingly, I have treated this matter solely in its own right.
