BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Supreme Court of Ireland Decisions


You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> De Rossa v. Independent Newspapers [1999] IESC 63; [1999] 4 IR 432 (30th July, 1999)
URL: http://www.bailii.org/ie/cases/IESC/1999/63.html
Cite as: [1999] 4 IR 432, [1999] IESC 63

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]


De Rossa v. Independent Newspapers [1999] IESC 63; [1999] 4 IR 432 (30th July, 1999)

THE SUPREME COURT

Hamilton CJ.
Denham J.
Barrington J.
Murphy J.
Lynch J.
282/97

BETWEEN:
PROINSIAS de ROSSA
Plaintiff/Respondent
and

INDEPENDENT NEWSPAPERS Plc.
Defendant/Appellant

[Judgments by Hamilton C.J. and Denham J. (Dissenting); Barrington J., Murphy J. and Lynch J. agreed with Hamilton C.J.]

Judgment handed down on the 30th day of July 1999 by Hamilton C.J.

1. The appeal in this case arises out of an action brought by the above named Plaintiff/Respondent, Proinsias de Rossa T.D. of 39 Pinewood Crescent, Ballymun in the City of Dublin (hereinafter referred to as the Respondent), and in which he claimed damages for libel against the above named Defendant/Appellant, Independent Newspapers Plc. (hereinafter called the Appellant).


_____________________ page break _____________________

(2)

2. The defamatory matter complained of was alleged to have been contained in an article published by the Appellant in the issue of the Sunday Independent dated the 13th day of December, 1992, which said article was set forth in toto in the schedule annexed to the Statement of Claim delivered on behalf of the Respondent.


3. The said article was written by a well-known journalist, Eamon Dunphy and was printed in a prominent position under the title “Throwing good money at jobs is dishonest”, in the said newspaper, which enjoys a large circulation.


4. The relevant portion of the said article is:-


“Irish society is divided. As the political parties manoeuvre to try to form a Government a clear picture has emerged, revealing the nature of our differences.

On one side of the argument are those who would find the idea of Democratic Left in cabinet acceptable. These people are prepared to ignore Democratic Left leader Proinsias de Rossa’s reference to the ‘special activities’ which served to fund the Workers Party in the very recent past.

_____________________ page break _____________________

(3)

The ‘special activities’ concerned were criminal. Among the crimes committed were armed robberies and forgery of currency.

The people engaged in this business occupied that twilight world where the line blurs between those who are common criminals and others of that ilk who would claim to be engaged in political activity.

This world is inhabited by myriad groups, some dealing in drugs, prostitution, protection rackets, crimes of which the weakest members of society are invariably the victims.

It is therefore, ironic, wickedly so, that a political party claiming to ‘care ‘for the workers should accept funding from ‘special activities’ of a particularly nasty kind.

There is no doubt that elements of Proinsias de Rossa ‘s Workers Party were involved in ‘special activities’. What remains unproven is whether de Rossa knew about the source of his party ‘s funds. There is evidence, strengthened by revelations in the Irish Times this week, that de Rossa was aware of what was going on.

If one is to allow him the benefit of the doubt, and why not, one must nevertheless, have some misgivings about those with whom he so recently associated.

_____________________ page break _____________________

(4)

Justice demands that we welcome Democratic Left’s recent conversion to decency and indeed, acknowledge that their Dáil deputies are exemplary in the conduct of their work they engage in on behalf of their constituents.

Still, questions remain unanswered about the Workers Party’s ‘special activities’ phase, not to mention their willingness to embrace the Soviet Communist party long after the world knew about the brutal oppression that this and other Communist regimes visited on workers, intellectuals and others who would think and speak freely.

Proinsias de Rossa’s political friends in the Soviet Union were no better than gangsters. The Communists ran labour camps. They were anti-Semitic.

Men like Andre Sakharov and Vaclav Havel were persecuted. Citizens who attempted to flee this terror were murdered In Berlin, the bodies left to rot in no man’s land between tyranny and liberty. Is it really necessary to remind ourselves of those ‘special activities’?”

5. In the Statement of Claim delivered on behalf of the Respondent on the 10th day of September 1993 it was alleged at paragraph 4 that:-


_____________________ page break _____________________

(5)

“The said words, in their ordinary and natural meaning, further or in the alternative by innuendo, meant and were understood to mean:

(a) That the Plaintiff had confessed to special activities on the part of a political party of which he was the leader;

(b) That the Plaintiff was aware of the said special activities;

(c) That the Plaint if tolerated the said special activities;

(d) That the said special activities were criminal in nature;

(e) That the said criminal activities consisted of or included:

(i) armed robbery

(ii) forgery of currency

(iii) drug dealing

(iv) prostitution or the management of prostitutes for reward

(v) protection rackets.

(f) That the Plaintiff had knowingly accepted funding, or allowed his party to accept funding, derived from the aforementioned activities;

(g) That the Plaintiff was knowingly party to such special activities;

(h) That the Plaint if knowingly benefited from such activities;

_____________________ page break _____________________

(6)

(i) That the Plaint if supported the running of labour camps, anti-Semitism, the persecution of intellectuals and politicians and the murder of citizens attempting to leave Communist dictatorships.”

6. In the said Statement of Claim, it was alleged that as a result of the said publication, the Respondent had been injured in his character and reputation and had been exposed to odium, ridicule and contempt.


7. The Defence delivered on behalf of the Defendant on the 12th day of May, 1994 pleaded as follows:


“1. The defendant admits that it published of and concerning the plaintiff the words set out in the Schedule to the Statement of Claim, but denies that they were published falsely or maliciously as alleged or at all.

2. The defendant admits that the words complained of mean that the plaint if was now leader of a party which had previously received funds raised as a result of criminal activities, and that there had been public comment on a letter purportedly signed by him which appeared to refer to

_____________________ page break _____________________

(7)

such activities. In that sense, the words complained of were true and accurate.

3. Save as herein before expressly admitted, the defendant denies that the words complained of in their natural and ordinary meaning or by way of innuendo bear or were understood to bear or were capable of bearing the meanings set out in paragraph 4 of the Statement of Claim or any other meaning defamatory of the plaintiff as alleged or at all.

4. Further or in the alternative, the words complained of are fair comment on a matter of public interest.

5. The defendant denies that the plaint if has suffered the alleged or any injury to his character or reputation as alleged or at all, or that he has been exposed to the alleged or any odium, ridicule or contempt as alleged or at all.

6. The plaint if is not entitled to the relief claimed or to any relief”

8. Notice of Trial was served on behalf of the Respondent on the 21st day of July 1994.


_____________________ page break _____________________

(8)

9. In view of the history of the proceedings herein subsequent to the service of the said Notice of Trial, it is necessary to set forth in some detail that history.


10. By letter dated the 26th day of October, 1994 the Respondent’s solicitors sought the following particulars of the Appellant’s aforesaid Defence:-


“1. In relation to the words which the Defendant admits publishing in Paragraph 1 of the said Defence, state which of the said words are alleged to constitute statements of fact and which are alleged to constitute comment.

2. Give full and detailed particulars of each and every fact which it is intended to prove in order to establish that the facts stated in the words complained of are true and accurate.

3. State specifically whether it is intended to allege at the Trial that each and every statement of fact in the words complained of is true and accurate, if it is not please identify the statements of fact not alleged to be true and accurate.

_____________________ page break _____________________

(9)

The said particulars were not given by the Appellant’s solicitors until a motion was issued by the Respondent’s solicitors on the 25th day of April 1995 seeking an order compelling delivery thereof.

By letter dated the 7th day of June, 1995 the Appellants solicitors replied in the following terms:

“1. Annexed hereto is a copy of the article complained of and marked in the margin thereto, as appropriate, (opposite the quoted parts of the article complained of) are the words fact’ or ‘comment’ or fact and comment’.

11. It should be noted that some of the extracts marked as consisting of fact might be construed as consisting partly of comment and also some of the extracts marked as consisting of comment might be construed as consisting partly of fact.


2. The facts on which the defendant relies as supporting the factual statements made in the quoted part of the article complained of are as follows:

(a) The existence of a letter dated 15 September 1986 to the Central Committee of the Communist Party of the Soviet Union, allegedly signed by the Plaintiff and by Sean Garland;

_____________________ page break _____________________

(10)

(b) The references in the letter of 15 September 1986 to the necessity for ‘special activities’ to meet a financial shortfall in Workers’ Party funding;

(c) The belief of Mr. James Nash, FSS Dip, that, on the balance of probabilities, the signatures on the letter of 15 September 1986 of Sean Garland and the plaint if are genuine;

(d) The links between the Workers ‘Party and the Communist Party of the Soviet Union;

(e) Payments by the Communist party of the Soviet Union to the Workers ‘Party;

(f) Claims made in the print and electronic media of links between the Workers ‘ Party and the Official IRA;

(g) Public concern about links between the Workers’ Party and the Official IRA;

(h) The involvement of members of the Workers’ Party and of persons closely associated with the Workers’ Party in criminal activities and in the Official IRA;

(i) The statement by former Workers’ Party TD, Pat McCartan, that senior officials of the Workers ‘Party had in 1991 sought to recruit colleagues to the Official IRA, despite claims by senior members of the Workers ‘Party that the Official IRA had disbanded.

3. It is submitted that this is not an appropriate particular to require. It is the intention of the defendants to prove that all

_____________________ page break _____________________

(11)

of the factual matters contained in the article are true in substance and in fact.”

12. By notice dated the 29th day of October 1996, the Appellants’ solicitors required the Respondent to admit the following facts:-


1. That the attached Irish Times report of October 26/27 1992, setting out the terms of a letter dated 15 September 1986 to the Central Committee of the Communist Party of the Soviet Union accurately sets out the terms of an original letter, allegedly signed by the plaintiff and Sean Garland held in the contemporary archives of the Russian Federation;

2. That the attached Irish Times newspaper article of December 7 1992 setting out a report by James Nash, FSS Dip, dated 6 December 1992 on the signatures on the letter of 15 September 1986 accurately sets out the terms of the said report of 6 December 1992; and

3. The attached interview between the plaintiff and the fish Times published in the Irish Times of 7 December 1992 represents the plaintiffs publicly stated position on the contents of the said letter of 15 September 1986 and his alleged involvement in that letter.

_____________________ page break _____________________

(12)

13. The Respondents action began before a Judge of the High Court and a jury on the 5th day of November 1996 and continued at hearing on the 6th, 7th, 12th 13th, 14th 15th and 19th days of November 1996.


14. On the 5th day of November 1996 the Appellant was given liberty to amend the second line of paragraph 2 of its Defence by substituting the words “had been” for the words “was now” and on the 12th day of November 1996 was given liberty to amend its particulars by including the following additional particular


“(j) The existence and contents of a letter dated the 15th September 1986 to the Central Committee of the Communist Party of the Soviet Union from a Senior Official of the Workers ‘Party provided that the Defendant [Appellant] shall furnish to the Plaintiff[Respondent] all documents relating to the matter raised by the amendment of the Defendant’s /Appellants] particulars.

On the 19th day of November, 1996 on the application of Counsel for the Respondent the jury was discharged by the learned trial judge because of the publication of an article in the Sunday Independent on the 17th day of November 1996 which might mislead or confuse the jury.

_____________________ page break _____________________

(13)

By order made on the 7th day of February 1997 the Appellant was given liberty to amend its Defence by the inclusion therein of the following paragraph:-

“2. The Defendant admits that the words complained of means [sic.] that the Plaintiff was leader of a party which had previously received funds as a result of criminal activities and that there had been public comment on a letter signed but not knowingly signed by him which appeared to refer to such activities. In that sense, the words complained of were true and accurate.”

15. By the said order the Appellant was given leave to amend its replies to Notice for Particulars and did so by letter dated the 12th day of February 1997.


16. In his reply to the amended Defence, the Respondent joined issue with the Appellant and in particular repeated his plea that the words complained of were published maliciously by the Appellant. This led to an exchange of letters dated respectively the 7th day of March 1997 and the 10th day of March 1997.


17. The Respondents action against the Appellant began again before a Judge of the High Court (Moriarty J.) and a jury on the 25th day of February


_____________________ page break _____________________

(14)

1997 and continued on the 26th, 27th, 28th days of February and on the 4th, 5th, 6th, 7th, 11th, 12th, 13th, 14th, 18th, l9th, 20th days of March 1997.

18. At the conclusion of the evidence, speeches and charge, the learned trial judge fixed the following questions for determination by the jury:-


1. Do the words complained of mean

(a) that the Plaintiff was involved in or tolerated serious crime?

(b) that the Plaintiff personally supported anti-Semitism and violent communist oppression?

2. If the answer to (1) or either part of it is ‘Yes’ were the words complained of published by Independent Newspapers Plc. without genuine belief in the truth?

3. If the answer to (1) or either part thereof is “Yes” and whether the answer to (2) is “Yes” or “No” assess damages.

19. The jury gave no answer to Question 1(a) and answered 1(b) No.


20. Answers to Questions (2) and (3) did not therefore arise.


_____________________ page break _____________________

(15)

21. The trial was begun again before a Judge of the High Court (Carney J.) and a Jury on the 15th day of July 1997 and continued on the 16th, 17th, 18th, 22nd, 23rd, 24th, 25th, 29th, 30th and 31st days of July 1997.


22. On this occasion the jury reached a verdict.


23. The following questions having been submitted to the jury were answered by them as follows:-


“1. Do the words complained of mean -

(a) that the Plaintiff was involved in or tolerated serious crime?

Answer: Yes

(b) that the Plaintiff personally supported anti-Semitism and violent Communist oppression

Answer: Yes

2. If the answer to 1 or any part thereof is “Yes” assess damages

Answer: £300,000.00”.

24. Having regard to such findings, the Court ordered that the Plaintiff/Respondent do recover against the Defendant/Appellant the sum of £300,000 and costs.


_____________________ page break _____________________

(16)

25. From these findings and order the Appellants have appealed to this Court.


26. The grounds of appeal relied on by the Appellant at the hearing of the Appeal were:


(k) That the damages were excessive.

(l) That the size of the award was wholly disproportionate to any damage done to the reputation of the Plaintiff/Respondent.

(m) That the size of the award was so high as to amount to a restriction or penalty on the freedom of expression of the defendant/appellant, and was therefore contrary to Article 10 of the European Convention on Human Rights.

(n) That the size of the award was a violation of the legal rights of the defendant/appellant.

(s) That the size of the award was a violation of the rights of the defendant/appellant pursuant to Article 40.3 and/or Article 40.6.1 .i of the Constitution.

(t) That the supposed rule of law or practice restraining counsel and the judge in defamation trials from offering specific guidance as to the appropriate level of general damages is inconsistent with the

_____________________ page break _____________________

(17)

provisions of the Constitution, and in particular Article 40.3 and/or Article 40.6.1 .i thereof, and that accordingly it had not been continued in force, as part of the law, by the provisions of Article 50 of the Constitution.

(o) That the learned High Court Judge misdirected the jury on the issue of damages.

27. With regard to this latter ground viz, that the learned trial judge misdirected the jury on the issue of damages, it is conceded on behalf of the Appellant that he directed the jury in accordance with generally accepted practice but it is submitted -


1. that this generally accepted practice is inconsistent with the provisions of the Constitution and cannot be allowed to continue;

2. a direction to the jury which would conform to the provisions of the Constitution would have required the judge to

(a) refer to the purchasing power of the award,

(b) the income which such award would produce,

(c) make a comparison with previous libel awards, and

(d) make a comparison with personal injury awards, and

(e) indicate the level of award which he would consider appropriate.

_____________________ page break _____________________

(18)

28. As there was no objection to the learned trial judge’s charge in respect the role of the jury in assessing damages or no requisition in regard thereto it is desirable at this stage to set forth that portion of his charge which dealt with the issue of damages.


29. The learned trial judge stated:-


“Now damages are meant to compensate a person for a wrong. It was pointed out to you by Counsel that damages are the only remedy available under the law as it stands. It has no power to compel a newspaper publish an apology or do anything of that kind. The only remedy available to a person who says he has been wronged in a newspaper article is damages. Damages are meant to put a person, in so far as money can do it, in the position that he or she would have been if the wrong had not taken place. That is the enterprise you are engaged in, in relation to damages.

Now I always think it is safest, the safest course for me in dealing with an issue to deal with it through words which emanate directly from the Supreme Court. as that might give me a certain protection in relation to criticism later on, but in a recent case, Mr. Justice O’Flaherty of the Supreme Court said, that the

_____________________ page break _____________________

(19)

approach in cases of this kind should be no different from any other type of proceedings. The jury should be told that their first duty is to try to do essential justice between the parties. They are entitled to award damages for loss of reputation as well as for the hurt, anxiety, trouble and bother to which the Plaint if has been put.

Now in another case Mr. Justice Henchy of the Supreme Court said:-

‘It is the duty of the Judge to direct the Jury that the damages must be confined to such sum of money as would 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 they must make their assessment entirely on the facts found by them, and among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the Plaint if 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’.

_____________________ page break _____________________

(20)

30. Now Mr. Justice Henchy in the case he was dealing with, said that the jury in that particular case wasn't given any real help as to how to assess compensatory damages, and he laid down a guide which could assist the Jury. He considered that in the case in question the jury could be asked to reduce the allegation complained of to actuality, and then to fit the allegation into its appropriate place in the scale of defamatory remarks to which the Plaintiff could be subjected.


31. Now that particular case affords you great assistance in placing the nature of the defamation in a scale, because that case Mr. Justice Henchy was referring to, revolved around an allegation by a politician that a journalist [sic.] tweaked his beard. Now it related to the time of one of the pushes against Mr. Haughey, and after an abortive push against him, everybody was coming out to a crowded area of Leinster House, bustling out, and something was written in the Evening Herald which involved an allegation a politician tweaked the Evening Herald journalist’s beard. Now the Learned Trial Judge found that to be defamatory and directed there be an assessment of damages.


32. Going back to Mr. Justice Henchy’s observation, if you examine the words and put them in a scale of things, compare the


_____________________ page break _____________________

(21)

allegation with tweaking a journalist’s beard, with an allegation that Mr. de Rossa was involved in or tolerated serious crime, and that he personally supported anti-Semitism and violent Communist oppression. It would not surprise me, Members of the Jury, if you went to the opposite end of the scale and even, apart from Mr. Justice Henchy’s helpful observations, I think there can be no question in this case but that if you are awarding damages you are talking about substantial damages.

33. Now as Counsel told you, I am not allowed to suggest to you figures. and Counsel are not allowed suggest to you figures either. I have gone as far as I can to help in relation to that question. I don ‘t think anybody takes issue with the proposition if you are awarding damages they are going to be substantial. Mr. de Rossa at the time was leader of a political party. The political party was seeking to go into government. Damages will be substantial. It is all I can say to you. It is a matter for you to assess what they ought to be, if you are assessing damages.”


34. There was, during the course of the trial no criticism of the judge’s charge in this respect and no requisitions were made by counsel for the Appellant in regard thereto. In their submissions in this Court the Appellant


_____________________ page break _____________________

(22)

acknowledges that the learned trial judge charged the jury in accordance with the practice as it had applied to date.

35. Two issues arise on this appeal viz:-


(1) whether the damages awarded to the Respondent were excessive, and

(2) whether the directions given to the jury by the trial judge on the manner in which they should approach the assessment of damages in cases of this nature were adequate and, if not, what directions should be given to the jury as to the manner in which they should approach the assessment of damages in cases of defamation.

36. It is conceded on behalf of the Appellant that the learned trial judge in the course of his charge to the jury followed the general practice in cases of this nature which was that of confining his directions to a statement of general principles, eschewing any specific guidance on the appropriate level of general damages.


37. As stated by the then Master of the Rolls, Sir Thomas Bingham, in the course of his judgment in John .v. M.G.N. Ltd. [1996] 2 A.E.R. 35 at pp. 48-49:-


_____________________ page break _____________________

(23)

“Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd.”

38. This approach was adopted by judges because the assessment of damages was peculiarly the province of the jury in an action for libel.


39. As stated by Finlay C.J. in the course of his judgment in Barrett .v. Independent Newspapers Ltd. [1986] IR 13 at p. 19 of the report the assessment by a jury of damages for defamation “has a very unusual and emphatic sanctity” and appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.


40. As stated by Cockburn C.J. in Phillips .v. The South Western Railway Company [1879] 4 QBD 406 at 408:-


_____________________ page break _____________________

(24)

“If a jury have taken all the proper elements of damage into consideration, and have awarded what they deemed to be fair and reasonable compensation under all the circumstances of the case, a Court ought not, unless under very exceptional circumstances, to disturb their verdict.”

41. The importance of the role of the jury in the assessment of damages in defamation actions was further emphasised by the Court of Appeal in the John case.


42. Though in this case the Court of Appeal was recommending certain changes of practice, it emphasised that the ultimate decision, subject to appeal, was that of the jury who were not bound by the submissions made to them.


43. Before proceeding to deal with the Appellant’s grounds of appeal I have sought to illustrate the role or province of a jury in actions for defamation.


44. It appears from the judge’s charge to the jury in this case that counsel for both parties acknowledged that neither they nor the judge were allowed to suggest figures to the jury.


_____________________ page break _____________________

(25)

45. Counsel for the Appellant have adopted a different stance in the course of this appeal.


46. It is submitted on behalf of the Appellant that:-


1. The present practice of allowing the jury in a libel action unguided discretion in its assessment of damages leads to excessive and disproportionate awards and is contrary to the provision of the Constitution.

2. More specific guidelines from the judge or counsel would facilitate the jury’s assessment of a reasonable and fair award without jeopardising its unique role in libel actions.

3. The guidelines to be given to a jury in such case should include:

(a) a reference to the purchasing power of any award which the jury might be minded to make and to the income which the award would produce,

(b) reference to what the trial judge and counsel considered to be the appropriate level of damages,

(c) reference by way of comparison by counsel and the trial judge to awards made in respect of personal injuries and to awards made in previous libel cases.

_____________________ page break _____________________

(26)

47. The effect of the Appellant’s submissions is that in an action for damages for defamation counsel and the trial judge should be permitted, in the course of their submissions and/or charge to the jury on the issue of damages, to give to the jury the benefit of their views as to the appropriate level of damages, to inform the jury of awards made in other libel cases and in personal injuries cases for the purpose of comparison and to make reference to the purchasing power of any award which the jury contemplated making.


48. In addition it is submitted on behalf of the Appellant that the common law and the Constitution require an appellate court, viz, the Supreme Court, to subject large awards of damages to a more searching scrutiny than has hitherto been customary.


49. Under the principles presently applied, a court of appeal could not set aside a jury award in a libel case simply on the ground that it was excessive, but only if the award was so unreasonable that it could not have been made and must have been arrived at capriciously, unconscionably or irrationally.


_____________________ page break _____________________

(27)

50. As stated by Mr. Justice Henchy in Barrett’s ([1986] IR 13, at 24) case:-


“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.”

51. It is submitted on behalf of the Appellant that this is not the proper test to be applied by an appellate court and that the proper test is that set forth by Neill L.J. in delivering the judgment of the Court of Appeal in Rantzen .v. Mirror Group Newspapers Ltd. [1993] 4 All ER 975, where he stated at p. 994 of the report that:-


“We consider therefor that the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has been regarded as the barrier against intervention should be lowered. The question becomes: could a reasonable jury have thought that this award was necessary to compensate the plaint if and to re-establish his reputation?”

_____________________ page break _____________________

(28)

52. This question or test differs substantially from the question or test which has hitherto applied, viz, was the award made by the jury so disproportionately high having regard to the injury suffered, that no jury acting reasonably and applying the law to all the relevant circumstances, could reasonably have awarded?


53. In support of his submissions, counsel on behalf of the Appellants has relied on the provisions of Article 40.6.1 of the Constitution, the provisions of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the decision of the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom [1995] 20 EHRR 442 and a number of cases including in particular:-


Barrett .v. Independent Newspapers Ltd [1986] IR 13;

McDonagh .v. News Group Newspapers Ltd. (unreported, Supreme Court, 23rd November 1993);

John .v. MG.N. Ltd. [1996] 2 All ER 35; and

Hill .v. Church of Scientology of Toronto (1995) 126 D.L.R. (4th) 129.

_____________________ page break _____________________

(29)

Relevant Constitutional Provisions

Article 40.3.1 of the Constitution

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Article 40.3.2 of the Constitution

“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.”

Article 40.6.1 of the Constitution

“The State guarantees liberty for the exercise of the following rights, subject to public order and morality .-

The right of citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving

_____________________ page break _____________________

(30)

their liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.”

54. While the Appellant relies on the provisions of Article 40.6.1 of the Constitution in support of its submissions, it is accepted that the right of freedom of expression enjoyed by the press is not absolute and is subject not only to the restrictions contained in the said article but must also be considered in the light of the provisions of Article 40.3.1.


55. As stated by Henchy J. in the course of his judgment in Hynes-O’Sullivan .v. O’Driscoll [1988] IR 436 at p. 450, [1989] ILRM 349 at 361:-


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.”

Provisions of Article 10 of the European Convention on Human Rights

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart

_____________________ page break _____________________

(31)

information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This Article of the said Convention recognises that the exercise of these freedoms may be subject to such restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others.

Although the European Convention on Human Rights is not part of Irish municipal law regard can be had to its provisions.

_____________________ page break _____________________

(32)

Geoghegan J., in the course of his judgment in Murphy .v. IR. T. C. [1997] 2 ILRM 467 stated at page 476 of the Report that:-

“Although the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right.”

56. There does not appear to be any conflict between Article 10 and the common law or the Constitution.


57. The effect of the provisions of Article 10 of the Convention was considered by the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom (1995)20 EHRR 442.


58. This was a case where the jury in a libel case in England had awarded £1.5 million, by way of damages against the applicant, Count Nikolai Miloslavsky, to one Lord Aldington. The applicant, Count Miloslavsky appealed to the Court of Appeal against the findings and award of the jury. The said appeal was dismissed by the Court of Appeal because of the applicant’s


_____________________ page break _____________________

(33)

failure to provide the security for costs of the appeal, which he had been directed by the Court to provide. The applicant then applied to the European Court of Human Rights alleging violations of Article 6(1), with which we are not concerned, and Article 10 of the Convention.

59. The applicant claimed that the award of £1,500,000 and the injunction granted by the High Court violated his right to freedom of expression as guaranteed by Article 10 of the Convention.


60. The Applicant’s claim under Article 10 was held to be admissible by the Commission.


61. In the course of its opinion the Commission stated at Paragraphs 52 and 53:-


“It is apparent to the commission that injury cases in the United Kingdom at the relevant time, the judge could give only general guidance as to the criteria to be used (for example, relating damages to the cost of a house) in assessing damages, but could not make any reference to other cases or specific sums of money. Moreover, the findings of the jury give no indication of the reasons

_____________________ page break _____________________

(34)

for assessing damages at one level rather than at another. It appears from the statements of law in the courts in the present case and from the subsequent development outlined above, that the Court of Appeal was unable in any real way to review or to control the size of the jury awards in the present case.

The Commission notes that in the present case the award of £1,500,000 was three times the size of the next largest award ever made. The Commission accepts that the allegations made against Lord Aldington (and found by the domestic courts to be unjustified) were very serious. However, the Commission cannot accept that an award of £1,500,000 to vindicate pure damage to reputation as distinct from compensating actual financial loss, can be proportionate to the legitimate aim pursued.”

62. As appears from the judgment of the Court, it had to consider two issues, viz.


1. whether the quantum of damages awarded by the jury was “prescribed bylaw”, and

_____________________ page break _____________________

(35)

2. whether the size of the award had been disproportionate to the aim of protecting Lord Aldington’s “reputation or rights” and thus had not been “necessary in a democratic society” .

63. The findings of the Court on the first issue are set forth in paragraphs 36-44 of its judgment which are set forth at pp. 467 to 470 of the report.


64. This issue was considered by the Court having regard to the common law prevailing at the time of the making of the award as set out in the judgment of the court.


65. The Court stated:-


“At English common law there was no upper or lower limit on the amount of damages. The extent to which a judge could give guidance was strictly circumscribed. No specific figures could be suggested and awards of damages in other libel cases or even in personal injury cases had to be disregarded for the purposes of comparison. Guidance could only be given to help the jury to appreciate the real value of large sums of money, for instance by inviting them to reflect on the value of a house. At the material

_____________________ page break _____________________

(36)

time, there had been no principle recognised in English law that required the award to be proportionate to the aim of repairing the damage to the plaintiff’s reputation. The jury gave no reasons for its decision and the award could be overturned by the Court of Appeal only if it was so unreasonable that it could not have been made by sensible people but must have been arrived at capriciously, unconscionably or irrationally.”

and

“The Court accepts that national laws concerning the calculation of damages for injury to reputation must make allowance for an open-ended variety of factual situations. A considerable degree of flexibility may be called for to enable juries to assess damages tailored to the facts of the particular case. Indeed, this is reflected in the trial judge ‘s summing-up to the jury in the present case. It follows that the absence of specific guidelines in the legal rules governing the assessment of damages must be seen as an inherent feature of the law of damages in this area.

Accordingly, it cannot be a requirement of the notion of ‘prescribed by law’ in Article 10 of the Convention that the applicant, even with appropriate legal advice, could anticipate

_____________________ page break _____________________

(37)

with any degree of certainty the quantum of damages that could be awarded in his particular case.”

and

“Having regard to the fact that a high degree of flexibility may be justified in this area, the various criteria to be taken into account by juries in the assessment of damages as well as the review exercised by the Court of Appeal, the Court reaches the conclusion that the relevant legal rules concerning damages for libel were formulated with sufficient precision. In short, the award was prescribed by law’.”

66. It is clear from the foregoing that the European Court would not consider that the award made in the instant case was not “prescribed by law” .


67. The Court then proceeded to deal with the second issue viz, whether the size of the award had been disproportionate to the aim of protecting Lord Aldington’s “reputation or rights” and thus had not been “necessary in a democratic society” , as required by the Convention.


_____________________ page break _____________________

(38)

68. In the course of considering this issue the Court stated (paragraphs 49-51 at pp. 472-473):-


“However, the Court takes note of the fact that the applicant himself and his counsel accepted that if the jury were to find libel, it would have to make a very substantial award of damages. While this is an important element to be borne in mind it does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.

The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord Aldington. The sum awarded was three times the size of the highest libel award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantive national law applicable at the time fails itself to provide a requirement of proportionality.

In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of

_____________________ page break _____________________

(39)

Appeal could not set aside an award simply on the grounds that it was excessive but only if 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. In a more recent case, Rantzen .v. Mirror Group Newspapers Ltd., the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society ‘for the purposes of Article 10 of the Convention. It noted that the common law - if properly understood - required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge could give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act 1990, would establish some standards as to what would be proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaint if had suffered and was a sum

_____________________ page break _____________________

(40)

which it was necessary to award him to provide adequate compensation and to re-establish his reputation.

The Court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, at the trial and on appeal, at the time of the applicant’s case did not offer adequate and effective safeguards against a disproportionately large award.

Accordingly, having regard to the size of the award in the applicant’s case in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award, the Court finds that there has been a violation of the applicant’s rights under Article 10 of the Convention.”

69. It is clear from the foregoing that the primary reason for the Court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.


70. The Court gave approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen ‘s case.


_____________________ page break _____________________

(41)

In Rantzen’s case, the Court of Appeal had stated ([1993] 4 A.E.R 975 at p. 997) that:-


“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 for defamation ... it seems to us that damages for defamation are intended at least in part as a vindication of the plaint if 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.”

71. The Court went on to state (at p. 997) that:-


“It is to be hoped that in the course of time a series of decisions of the Court of Appeal will establish some standards as to what are in the terms of section 8 of the 1990 Act, ‘proper’ awards.

In the meantime the jury should be invited to consider the purchasing power of any award which they may make. In addition they should be asked to ensure that any award they make is proportionate to the damage which the plaint if has suffered and is

_____________________ page break _____________________

(42)

a sum which it is necessary to award him to provide adequate compensation and to re-establish his reputation.

The judgment of the Court of Appeal in John .v. M.G.N Ltd. [1996] 2 A.E.R. 35 extended further the guidelines to be given to juries in defamation actions.

In the first instance, the Court stated that it agreed with the ruling in Rantzen that reference may be made to awards approved or made by the Court of Appeal.

The Court rejected the statement made by the Court of Appeal in Rantzen’s case that “[w]e 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 for defamation” and stated (at p. 54) that “[t]he time has in our view come when judges, and counsel, should be free to draw the attention of juries to these comparisons.

The Court then went further and stated that it could see no reason why the parties’ respective counsel in a libel action should not indicate to the jury

_____________________ page break _____________________

(43)

the level of award which they respectively contended to be appropriate, nor why the judge directing the jury should not give a similar indication. The Court stated at p. 55 of the report:-

“The plaint if will not wish the jury to think that his main object is to make money rather than clear his name. The defendant will not wish to add insult to injury by underrating the seriousness of the libel. So we think the figures suggested by responsible counsel are likely to reflect the upper and lower bounds of a realistic bracket. 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.

The modest but important changes of practice described above would not in our view undermine the enduring constitutional position of the libel jury. Historically, the significance of the libel jury has lain not in their role of assessing damages, but in their role of deciding whether the publication

_____________________ page break _____________________

(44)

complained of is a libel or no. The changes which we favour will, in our opinion, buttress the constitutional role of the libel jury by rendering their proceedings more rational and so more acceptable to public opinion.

At page 58 of the report, the Court stated:-

“The European Convention on Human Rights is not a free standing source of law in the United Kingdom. But there is, as already pointed out, no conflict or discrepancy between Art. 10 and the common law. We regard Art. 10 as reinforcing and buttressing the conclusions we have reached and set out above. We reach those conclusions independently of the convention, however, and would reach them even if the convention did not exist.”

72. While the aforesaid changes of practice were therein described as “modest”, they are not only important but fundamental and radically altered the general practice with regard to the instructions or guidance to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action.


_____________________ page break _____________________

(45)

73. It had been the invariable practice in the past that neither counsel nor the judge could make any suggestion to the jury as what would be an appropriate award.


In Ward .v James [1965] 1 A.E.R. 563 at 574 the Court of Appeal had given reasons why no figures should be mentioned. It stated:-

‘If the judge can mention figures to the jury, then counsel must be able to mention figures to them. Once that happened, we get into the same trouble again. Each counsel would, in duty bound, pitch the figures as high or as low as he dared. Then the judge would give his views on the rival figures. The proceedings would be in danger of developing into an auction.

It is submitted on behalf of the Appellant that the aforesaid guidelines as outlined in Rantzen’s case and John’s case should be incorporated into the guidelines to be given to a jury in the course of a judge’s charge on the issue of damages in this jurisdiction.

_____________________ page break _____________________

(46)

It is further submitted that a jury’s award in a defamation case should in an appeal court, be subject to a more stringent examination than heretofore and that the test to be applied should be

“could a reasonable jury have thought that that this award was necessary to compensate the Plaint if and to re-establish his reputation?”

74. It is further submitted that the award made by the jury in this case was so high as to amount to a restriction or penalty on the freedom of expression of the Appellant contrary to Article 10 of the Convention and that there was a lack of proportionality between the award and the damage it sought to compensate for.


75. It is submitted on behalf of the Appellant 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 Appellant’s rights under the Constitution and the Convention.


_____________________ page break _____________________

(47)

76. By virtue of the provisions of Article 40.6.1 of the Constitution, the Appellants are entitled, subject o the restrictions therein contained, to exercise the right to express freely their convictions and opinions.


77. 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.


78. Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.


79. 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] IR 436, [1989] ILRM 349). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.


_____________________ page break _____________________

(48)

80. The right to freedom of expression is guaranteed by Article 10.1 of the Convention but the exercise of such a right is subject to the restrictions contained in Article 10.2, the relevant provision of which reads as follows:-


“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others...”

81. As appears from the passage of the judgment of the European Court of Human Rights already quoted herein and which states ((1995)20 EHRR 442 at p. 472):-


“... under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.”

82. Both the Constitution and the Convention guarantee the right to freedom of expression but also recognise the right of the citizen to his “good name” and “reputation “.


_____________________ page break _____________________

(49)

83. The only remedy open to a person whose right to his good name or reputation has been damaged or wrongfully interfered with is by way of an action for damages.


84. 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.


85. The present law applicable in this State is as stated by Mr. Justice Henchy in the course of his judgment in Barrett .v. Independent Newspapers Ltd. [1986] IR 13, pp. 23 and 24 of the report where he said:-


“The second ground of appeal is that the award of £65, 000 is so excessive as to be unsustainable. 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

_____________________ page break _____________________

(50)

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 plaint if 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

_____________________ page break _____________________

(51)

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.”

_____________________ page break _____________________

(52)

86. 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 stand.

87. The obligations arising from the provisions of the Constitution and the Conventions 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.


_____________________ page break _____________________

(53)

88. Neither the Constitution nor the Convention requires that the guidelines to be given to juries should be changed in the manner argued for by the Appellant.


89. The guidelines recommended by the Court of Appeal in John’s case were based not on the Convention nor, obviously, on the Irish Constitution but were in the view of the Court of Appeal a development of the Common Law.


90. The judgment of the Court of the Appeal is not binding on this Court but is deserving of consideration by it.


91. If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages, a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages.


_____________________ page break _____________________

(54)

92. It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.


93. I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.


94. The assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not in any way altered by the provisions of the Courts Act 1988, which provided that certain actions, including claims for damages for personal injuries, should not be tried by a jury.


95. 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’s case to that reached in John’s case and accept the reasoning contained in the following passage from the judgment of Lord Hailsham L.C. in Cassell & Co. Ltd. .v. Broome [1972] 1 A.E.R. 801 where he stated at page 824 of the Report:-


_____________________ page break _____________________

(55)

“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 plaint if 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 . (1967) 117 CLR 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

_____________________ page break _____________________

(56)

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 plaint if 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 plaint if badly, as for instance by provoking the defendant, or defaming him in return. In all such cases it must be appropriate to say with Lord Esher MR in Praed .v. Graham (1889) 24 QBD 53 at 55. ‘... in actions of libel ... the jury in assessing damages are entitled to look at the whole conduct of the defendant [I would personally add “and of the plaintiff from the time the libel was published down to the time

_____________________ page break _____________________

(57)

they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial’.”

96. I do not accept that the invariable practice that neither counsel nor the judge could make any suggestion to the jury as to what would be an appropriate award should be altered and accept the statement contained at p. 574 in the judgment of the Court of Appeal in Ward .v. James [1965] 1 A.E.R. 563 already cited herein.


97. As already emphasised herein and stated by Henchy J. in Barrett’s case, the jury must base their assessment entirely on the facts as found by them. Departure from this principle would lead to utter confusion.


98. With regard to the recommendation that reference may be made to awards made or approved of by the Court of Appeal it is clear from the judgment of the Court of Appeal in John’s case [1996] 2 A.E.R. 35 that the change brought about by the provisions of the British Courts and Legal Services Act of 1990 in the powers of the Court of Appeal was fundamental to the recommendation therein contained that it would be open to the trial judge to refer to awards which had been made or approved by the Court of Appeal in previous awards in defamation cases and that in the absence of such change no such recommendation would have been made.


_____________________ page break _____________________

(58)

99. In the course of its judgment, the Court stated at page 51 of the report that:-


“We wholly agree with the ruling in Rantzen that juries should not at present be reminded of previous libel awards by juries. These awards will have been made in the absence of specific guidance by the judge and may themselves be very unreliable markers. The position may change in the future if the additional guidance which we propose later in this judgment is given and proves to be successful. As was pointed out in the course of argument, however, comparison with other awards is very difficult because the circumstances of each libel are almost bound to be unique. Furthermore, the corpus of such awards will be likely to become unwieldy and time would be expended on the respective parties pointing to features which were either similar or dissimilar in the other cases.

At page 52 of the report the Court stated:-

“We agree with the ruling in Rantzen that reference may be made to awards approved or made by the Court of Appeal. As and when a framework of awards is established this will provide a valuable

_____________________ page break _____________________

(59)

pointer to the appropriate level of award in the particular case. But it is plain that such a framework will not be established quickly: it is now five years since section 8(2) of the 1990 Act and Order 59, rule 11(4) [of the Rules of the Superior Courts] came into force, and there is no case other than [ Gorman .v. Mudd [1992] CA Transcript 1076], Rantzen and Houston .v. Smith [1993] CA Transcript 1544] in which the court has itself fixed the appropriate level of award.

It is true that awards in this category are subject to the same objection that time may be spent by the parties on pointing to similarities and differences. But, if used with discretion, awards which have been subjected to scrutiny in the Court of Appeal should be able to provide some guidance to a jury called upon to fix an award in a later case.

The matters to be taken into account by the jury in its assessment of the proper award to be made to a plaintiff in a defamation action are as set out in the passage from the judgment of Henchy J. in Barrett’s case as hereinbefore set forth and the jury has to be told they must make their assessment entirely on the facts as found by them.

_____________________ page break _____________________

(60)

Each defamation action has its own unique features and a jury in assessing damages must have regard to same: these include the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages and many other matters. These will vary from case to case.

Figures awarded in other cases based on different facts are not matters which the jury is or should be entitled to take into account.

For these reasons, I am not prepared to alter the traditional guidelines to be given to the jury with regard to the assessment of damages in cases of this nature.

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 [1986] IR 13 at p. 19 of the report that:-

_____________________ page break _____________________

(61)

“With regard to the appeal against the amount of the damages certain principles of law are applicable. Firstly, while the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed on appeal, it 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’s case where it is stated at page 55 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.” (emphasis added)

_____________________ page break _____________________

(62)

100. 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.


101. 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.


102. It has been submitted on behalf of the Appellant 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?”

103. 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.


_____________________ page break _____________________

(63)

104. 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.


Damages

105. It is submitted on behalf of the Appellant that the damages awarded by the jury were excessive and wholly disproportionate to any damage done to the Respondent.


106. 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 ‘s case at pp. 47 and 48 of the report where it is stated as follows:-


“The successful plaint if 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

_____________________ page break _____________________

(64)

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 plaint if 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 plaint if in a wounding or insulting way.”

_____________________ page break _____________________

(65)

Gravity of Libel

107. The jury found that the words complained of by the Respondent meant that the Respondent


(i) was involved in or tolerated serious crime, and

(ii) personally supported anti-Semitism and violent communist oppression.

108. The Appellant has not appealed against such findings, is bound by them and must abide by the consequences thereof.


109. 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.


110. To publish such words in relation to the Respondent, 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 Appellant at the time of publication, which might lead to his participation in Government, renders such publication more serious and grave, particularly when they might


_____________________ page break _____________________

(66)

have interfered with his chances of participation in such Government. The words published clearly affected the Respondent’s personal integrity and professional reputation.

Effect on Plaintiff/Respondent

111. One of the most important factors in the assessment of damages is the effect of the libel on the plaintiffs feelings.


112. The Respondent has given evidence, during the course of three trials, of the distress, hurt and humiliation caused to him by the said publication and of his determination to vindicate his personal and political reputation. It is not necessary to set forth such evidence in the course of this judgment as his evidence in this regard was obviously accepted by the jury and it is easy to imagine the hurt and distress which allegations of this nature would cause.


113. A clear indication of such hurt is to be found in his answer to Question 26 on p. 13 of the transcript for the 16th day of July, 1997 where he stated:-


“What brought me to Court is the failure over the years since December, 1992 of the Sunday Independent to simply print a

_____________________ page break _____________________

(67)

retraction of the allegations they made about me and an apology in their paper and a donation to charity. They have refused right along the line to do that. I have been in Court now three times. I do not want to necessarily go into why this is the third case but the fact is that I have, I am determined that my name be cleared. That is why I am here for the third time. It is not easy I have to tell you. It is not easy to sit here and be stripped personally layer by layer going back to my childhood and my family and to have all of this gone over, and the newspapers printing it day after day and being tormented by it and my family having to read it and to read it time after time after time. It is not easy but I am determined to see it through to the end. I am absolutely determined to see it through to the end. I am not a criminal. I am not an indecent person and I will not allow the Sunday Independent or anybody else to say that I am. I will not simply allow it.”

114. The desire to vindicate his reputation is patently obvious from such passage.


_____________________ page break _____________________

(68)

Extent of Publication

115. The article complained of was published by the Appellant in the issue of the Sunday Independent dated the 13th day of December 1992.


116. It is conceded by both parties that the Sunday Independent has a wide circulation throughout the State and is read each Sunday by over a million people.


117. Consequently, the publication of the defamatory matter was widespread and extensive and this is a factor which the jury was entitled to take into account in their assessment of the damages to which the Respondent was entitled.


Conduct of Appellant

118. A jury is also entitled to take into account the whole conduct of the Appellant from the time when the libel was published down to the very moment of their verdict.


119. They may take account of the conduct of the Appellant before action, after action and in Court at the trial of the Action and the fact that no apology, retraction or withdrawal was made in this case.


_____________________ page break _____________________

(69)

120. The fact that no apology, retraction or withdrawal of the allegation made in this case at any stage of the proceedings is of considerable importance.


121. Its importance is highlighted by the following extracts from the proceedings in the second trial and the third trial.


122. In the transcript of the proceedings held on the 28th February 1997 the following exchanges between the Respondent and counsel for the appellant appear on Page 33 thereof and the following pages:-



261. Q. Well is it your case that the Workers Party had no involvement that you knew about whatsoever with illegal activities?

123. A. It is my case in the first place Mr. MacEntee that I am here in this Court suing the Sunday Independent for a gross libel against me, that I am criminal, that I am a drug pusher, that I am a pimp, a forger, and a bank robber. That is my case, that I have been libelled by the Sunday Independent. You clearly have no way of proving that otherwise you would not be putting me thorough this kind of nonsensical cross examination about history. I want the Sunday Independent to withdraw these serious allegations about me. I am not a criminal, I have never been a criminal, I have never been accused of being a criminal in any court. I have never been convicted of being a criminal in any court. That is all I want you to do, is to simply withdraw those gross allegations against me.


262. Q. I have no hesitation Mr. De Rossa in saying that my clients do not contend that you are a criminal?

124. A. Well what is this [INDICATING] what is this, what is this?


_____________________ page break _____________________

(70)

263. Q. It is our case Mr. De Rossa, it is our case Mr. De Rossa that the article does not say that.

125. A. The article says Mr. MacEntee, the article says -


264. Q. We are contending it does say -

126. A. The article says -


“On one side of the argument are those who would find the idea of Democratic Left in Cabinet acceptable. These people are prepared to ignore the Democratic Left Leader, Proinsias De Rossa’s reference to the ‘special activities’ which served to fund the Workers Party in the very recent past.

The ‘special activities’ concerned were criminal Among the crimes committed were armed robberies and forgery of currency.

The people engaged in this business occupied that twilight world where the line blurs between those who are common criminals and others of that ilk who would claim to be engaged in political activity.

This world is inhabited by myriad groups, some deal in drugs, prostitution, protection rackets, crimes of which the weakest members of society are invariably the victims.

It is therefore ironic, wickedly so, that a political party claiming to care for the workers should accept funding from ‘special activities’ of a particularly nasty kind There is no doubt that elements of Proinsias De Rossa's party were involved in ‘special activities’. What remains unproven is whether De Rossa knew about the source of his party's funds. There is evidence, strengthened by revelations in the Irish Times this week, that De Rossa was aware of what was going on. “[READ]

265. Q. Mr. MacEntee: Read on.

127. A. That is a direct accusation of me being a criminal.


266. Q. Read on the next paragraph?

_____________________ page break _____________________

(71)

A. I will read on -

“If one is to allow him the benefit of the doubt, and why not” -

If one is to allow him the benefit of the doubt, the benefit of the doubt is something you allow to a criminal. It is something you allow to somebody who is in court accused of a serious crime, not a criminal. I am not accused of a serious crime by anybody except by the Sunday Independent. I am asking you to withdraw those allegations. If you are not saying that I am not a criminal then fine, withdraw it and apologise, and get the Sunday Independent to withdraw it and apologise.

267. Q. I am not saying-


A. That is why I am here to establish my character. That is why I am here Mr. Keely.

268. Q. I am not saying, nor is it any part of the case that my clients are making that you are a criminal in any of those senses.

A. In what sense am I a criminal?

269. Q. In no sense.

A. In so sense am I a criminal, so why is the Independent putting me through this cross examination. Why did they put me through four or five weeks of cross examination. Why couldn’t they have said that four years ago when asked for a retraction and a withdrawal.

JUDGE: Well Mr. De Rossa, the strength of your feelings are perfectly clear and the jury will bear them in its minds in due course.

A. Sorry Your Lordship.

JUDGE: But the last question that Mr. MacEntee came around to is one that I think is relevant, and you will probably have no concern about answering. The last specific question he asked you was is it the case that the Workers Party had no contact or concern with unlawful activities or illegal activities.

_____________________ page break _____________________

(72)

A. Yes, exactly, that is the answer, they did not have any such association with criminal activities. I repeat again, that I shouldn’t, if the Independent are not accusing me of being a criminal why have they not withdrawn it and apologised, why?

270. Q. MR. MacENTEE: Because they have not, they have never said that.

A. They said it here in black and white.

In the course of the third trial the transcript of the proceedings held on the 18th day of July 1997 disclose at page 102 thereof that the following exchanges occurred between Counsel for the Appellant and the Respondent:-

“400. Q. We have heard that speech before?

A. I am entitled to continue, you are entitled to ask your questions half a dozen times in a row. I am entitled to restate why I am here. I am not a criminal. I am not in this box because I am a criminal. I am in this box because the Sunday Independent said I was a criminal and I refuse to accept that and I refuse to go away until they withdraw that.

401. Q. Mr. De Rossa, I am saying to you the Sunday Independent does not assert you are a criminal?

A. They do. It is in black and white.

402. Q. They never asserted you were a criminal?

A. In the newspaper.

403. Q. And does not?

A. They have never retracted. It is in black and white.

_____________________ page break _____________________

(73)

404. Q. We will deal with the rest of the article later?

A. It is in black and white. It has never been retracted.

405. Q. We will deal with the rest (INTERJECTION)

A. They have never apologised, never once. If they had done that I would not be here. I would not have been here on the last case, I would not have been here on the previous case. They have persisted, because they have hundreds of millions of pounds to try and destroy me. They have insisted on doing that, they set out to do it in the first place to ensure I didn’t get into Government and now they are so arrogant because of their power and their money they persist in doing it here time and time again and paying you to do it for them.”

128. These passages clearly disclose that what the Respondent required was a withdrawal of the allegations contained in the article and the continued refusal of the Appellant to withdraw such allegations and apologise therefor on the grounds that the article did not allege or mean that the Respondent was a criminal.


129. This was the attitude adopted by the Appellant from the beginning and which obliged the Respondent to institute proceedings for the purpose of vindicating his good name and reputation which he did by the issue of the plenary summons on the 19th day of August 1993.


_____________________ page break _____________________

(74)

130. I have in the earlier portion of this judgment set forth the history of the proceedings. It is not necessary for me to repeat this history other than to repeat that the Respondent was forced to undergo three trials in order to secure vindication of his reputation.


131. The first trial began on the 5th November 1996, lasted 8 days and was aborted by the trial judge because of the actions of the Respondent.


132. The second trial, began on the 25th February 1997, lasted 15 days and proved inconclusive.


133. The third trial, began on the 15th July 1997 and lasted 11 days.


134. During the course of each of those trials the Respondent was subjected to immensely prolonged and hostile cross-examination by counsel for the Appellant.


135. While denying that the words complained of were capable of the meaning alleged by the Respondent that he was a criminal, the Appellant still sought to damage the Respondent by association and made no effort to withdraw the allegation.


_____________________ page break _____________________

(75)

136. Right to the very end of the trial the Appellant contested the right of the Respondent to damages and vindication of his right to his reputation and challenged his motives in bringing the action and his honesty and credibility.


137. In the course of his closing address to the jury, counsel for the Appellant stated, inter alia:-


“(a) On behalf of the Defence, Independent Newspapers, we say that the case which has been brought by the Plaintiff is misconceived and that the picture that the Plaintiff Proinsias de Rossa was trying to print is misleading and false. We say that advisedly in all seriousness.

(b) We say that the case is misconceived as to its motive and its purpose.

(c) We say that this case has been brought by Proinsias de Rossa in an attempt to escape his past.

(d) We say that to present facts and to present the case selectively is an attempt to pull wool over your eyes.

(e) We are asking you to ask yourselves did Proinsias de Rossa tell the whole truth, did he tell you as much about the events which are so relevant in this case as you need to know or did he treat you as

_____________________ page break _____________________

(76)

apiece of material, apiece of cloth where the truth was. I don’t know if you are familiar with the phrase C.M.T., cut make and trim, you make a trim where the material was cut and made and trimmed it in order to suit whatever eventuality arise. What assessment do you make about Proinsias de Rossa’s credibility. Did he give direct answers to direct questions. Do you remember those long answers, did he use Eamonn Dunphy’s words to obscure the meaning. Did he use the mantra, the mantra we all know about as a bolt hole when he was under pressure as a method of avoiding awkward questions. If he did I am asking you to ask yourselves was he really trying to cod you, was he treating you in such a way as to make insult of your intelligence, to give you some of the truth but not the whole truth. He didn’t tell you the whole truth.”

138. These selected extracts from counsel’s closing speech clearly illustrate that throughout the trial the Appellant attacked the bona fides of the Respondent’s claim and his credibility.


139. The Respondent is entitled to recover, as general compensatory damages such sum as will compensate him for the wrong which he has suffered and that


_____________________ page break _____________________


(77)

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. Such sum should, however, be fair and reasonable and not disproportionate to the wrong suffered by the Respondent.

140. The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti-Semitism and violent Communist oppression.


141. If these allegations were true, the Respondent was guilty of conduct, which was not only likely to bring him into disrepute with right-minded people but was such as to render him unsuitable for public office.


142. No more serious allegations could be made against a politician such as the Respondent herein.


143. Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.


_____________________ page break _____________________

(78)

144. The jury assessed damages in the sum of £300,000. This is a substantial sum but the libel was serious and grave involving an imputation that the Respondent was involved in or tolerated serious crime and that he personally supported anti-Semitism and violent Communist oppression.


145. Bearing in mind that 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 and not be disproportionate thereto, I am not satisfied that the award made by the jury in this case went beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded and is not disproportionate to the injury suffered by the Respondent.


146. I would dismiss the appeal.

THE SUPREME COURT
No. 282/97
Hamilton, C.J.
Denham, J.
Barrington, J.
Murphy, J.
Lynch, J.

BETWEEN
PROINSIAS de ROSSA
PLAINTIFF/RESPONDENT
AND

INDEPENDENT NEWSPAPERS PLC.
DEFENDANT/APPELLANT

Judgment delivered the 30th day of July, 1999 by The Hon. Mrs. Justice Denham.

_____________________ page break _____________________

-2-

147. The issues on this appeal relate to the level of damages. The facts have been fully stated by the Chief Justice. The Appellant raises three issues for determination: (a) whether the charge to the jury by the judge should contain further guidance on the level of damages; (b) whether the appellate court should subject large awards of damages to a more searching scrutiny than has hitherto been customary; and (c) whether the award of £300,000 was excessive.


148. The Appellant submits that further guidelines on the level of damages should be given to the jury by the judge and by counsel in libel cases. The Appellant proposes a more active role for the judge. Under common law the judge’s role on the issue of the level of damages is minimalist. Historically, the role of the jury in libel actions has been that they are the decision-makers of fact - including the level of damages. It has long been considered that the issue of damages in a libel case is quintessentially a jury function and that its discretion should be unfettered. However, in other jurisdictions in recent times judges have determined on a more active approach. In general, this changed approach has arisen to aid consistency in the administration of justice. In particular, the role of the judge in libel cases has been reconsidered in light of high jury awards in certain jurisdictions.


149. The Respondent submits that the only real issue on this appeal is whether a reasonable jury could have awarded the sum of £300,000 to the Respondent in the circumstances of the case. Counsel submitted that no decision of the European Court of Human Rights suggests that the amount awarded in this case was excessive. Further, it was submitted on behalf of the Respondent that, to the knowledge of the jury, in this case there was a failure by the Appellant to apologise, an attempt at justification, a plea of fair comment was used to introduce evidence damaging by association to the Respondent, there was prolonged and hostile cross-examination over various trials, there were suggestions that the


_____________________ page break _____________________

-3-

150. Respondent was dishonest in the presentation of his case and there were three lengthy trials together with a commission in Moscow at the behest of the Appellant which delayed the start of the third trial following the swearing of the jury and which involved a major escalation of the cost of the proceedings.


Charge to the Jury

151. The learned trial judge gave a charge to the jury in accordance with the current law. No specific guidelines were given in relation to the level of damages;


the charge was general. The learned trial judge referred to and quoted from Barrett v. Independent Newspapers Ltd. [1986] IR 13, which is a classic example of the current law. The learned trial judge spoke to the jury of the type of case Henchy J. was dealing with in Barrett v. Independent Newspapers Ltd . - a statement by a journalist that a politician pulled at his (the journalist’s) beard - which had been held to be defamatory. The learned trial judge asked the jury to compare that allegation with the allegations against Mr. de Rossa, including that he was involved in or tolerated serious crime, supported anti-Semitism and violent communist oppression. In relation to damages, the learned trial judge used the word substantial” repeatedly and said he was not allowed to suggest figures. His precise words were:

“It would not surprise me, Members of the Jury, if you went to the opposite end of the scale and even, apart from Mr. Justice Henchy’s helpful observations, I think that there can be no question in this case but that if your are awarding damages you are talking about substantial damages.

Now as Counsel told you, I am not allowed to suggest to you figures, and Counsel are not allowed suggest to you figures either. I have gone

_____________________ page break _____________________

-4-

as far as I can to help in relation to that question. I don’t think anybody takes issue with the proposition if you are awarding damages they are going to be substantial. Mr. de Rossa at the time was leader of a political party. The political party was seeking to go into government. Damages will be substantial. It is all I can say to you. It is a matter for you to assess what they ought to be, if you are assessing damages.”
[emphasis added]

152. The Appellant submitted that the absence of specific guidelines from the judge on the level of damages, the absence of figures, leads to excessive and/or unpredictable jury awards. It was submitted that the practice of not giving guidelines, inter alia , violates the protection of the freedom of expression guaranteed in the Constitution. On the appropriate level of damages, it was submitted that counsel and the judge ought to be permitted to refer to (a) the purchasing power of any award which the jury might make and the income it would produce, (b) a comparison with the level of awards in personal injury cases, (c) previous libel awards made or approved by the Supreme Court, and (d) the level of award deemed appropriate.


153. The law and practice of the court must enable a due balancing of the constitutional right of freedom of expression and the constitutional right to protection of a person’s good name. The right of freedom of expression is expressly stated in Article 40.6.1 0i of the Constitution of Ireland. There are also relevant unspecified rights protected by Article 40.3.1 0 of the Constitution, such as the right to information. On the other hand, there is the State’s obligation to vindicate the good name of every citizen in the case of injustice. The law of defamation has a key part to play in the protection of the constitutional right to the vindication of the good name of a citizen. In a defamation case the judge should act to achieve a balancing of these constitutional rights.


_____________________ page break _____________________

-5-

154. While the European Convention on Human Rights is not part of the domestic law of the State it is appropriate to consider the Convention when analysing fundamental rights. The rights protected by Article 10 are similar to the rights of freedom of expression and freedom to be informed under the Constitution. In Tolstoy Miloslavsky v. United Kingdom (1995)20 EHRR 442 the European Court of Human Rights held that the Applicant’s rights under Article 10 of the Convention had been violated having regard to the size of the award (which was £ 1,500,000) in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. The Court held (at p.472):


“In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if 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. In a more recent case, Rantzen v. Mirror Group Newspapers Limited , the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law - if properly understood - required the courts to subject large awards of damages to a more searching scrutiny than had been customary.

The Court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, at the trial and on appeal, at the time of the applicant’s case did not offer adequate and effective safeguards against a disproportionately large award.”

155. Other common law jurisdictions (other than Ireland and the United Kingdom) are not subject to the European Convention on Human Rights. However, in those


_____________________ page break _____________________

-6-

jurisdictions too the issue of more specific guidelines on the level of damages to the jury has been considered. These cases are noted to illustrate the fact that it is appropriate to reconsider the old common law approach to the charge given by a judge to a jury in libel cases.

156. After some varying approaches the courts in England and Wales have introduced a new guide for the trial judge. In John v. MGN Ltd. [1996] 2 All ER 35 the Court of Appeal held that in assessing compensatory damages in a defamation case a jury could in future properly be referred (a) by way of comparison to the conventional compensation scales in personal injury cases, (b) to previous libel awards made or approved by the Court of Appeal, and (c) there was no reason why the judge, in his charge to the jury, or counsel in their submissions, should not indicate to the jury the level of award which they considered appropriate. It was considered that these changes would buttress the constitutional role of the libel jury by rendering the proceedings more rational and so more acceptable to public opinion.


In Scotland in Girvan v. Inverness Farmers Dairy and Anor. [1996] S.C.L.R. 294 in obiter dicta Lord Abernethy requested a reconsideration in relation to jury decisions on damages in personal injury cases stating:

“In England juries to all intents and purposes no longer sit in cases of personal injuries. But a not dissimilar problem has arisen there in defamation cases, which are still tried by juries and in which it has also been the practice not to suggest any figure which might appropriately be awarded. In recent years some awards in such cases have been so high that they have been seen as quite out of proportion to any damage conceivably suffered and also to the general pattern of awards for pain, suffering and loss of amenities in personal injury cases. The matter was considered very recently by the Court of Appeal in the case of John v. MGN Ltd . the Court decided that the reasons which had previously been given for the practice of not suggesting any figures to the jury were unconvincing and could see no reason why the parties’ counsel, and the judge, should not indicate to the jury what they considered to be an appropriate level of award, the former by way of submission, the latter

_____________________ page break _____________________

-7-

by way of direction. In my opinion the Court of Appeal’s decision and the reasons given for it are compelling. They are also in line with the provisional view expressed by the Law Commission in a recent Consultation Paper (No 140) on non-pecuniary loss in damages for personal injury. In my opinion, urgent consideration should be given to a similar move in civil jury trials in Scotland. In saying this, I am aware that the Rules Council considered the matter fairly recently and apparently decided against any change. I say ‘apparently’ because, so far as I am aware, no decision has ever been publicly announced nor any indication given of the council’s reasoning. But no change has yet taken place. In any event, for the reasons I have given, I would urge that the matter be reconsidered.”

157. In Australia the New South Wales Law Reform Commission (Report 75, September, 1995) recommended that defamation damages should always be assessed by a Judge and not a jury. In Carson v. John Fairfax & Sons Ltd. [1993] 178 C.L.R. 44 Brennan J. held that an attempt to compare awards made in respect of disparate heads of damage is more likely to confuse than to correct. However, the majority of the High Court of Australia said at pp.59-60:


“Although there is authority in this Court to the effect that the quantum of damages is not to be resolved by reference to a norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases, there is much to be said for trial judges offering some guidance on damages - such as inviting the jury to consider the investment or buying power of the amount it might award or perhaps even indicating a range of damages which might be considered appropriate - while ensuring that the jury knows that they are to reach their own decision.”

158. In New Zealand, of the statement cited above Lord Cooke said in Television New Zealand Ltd. v. Quinn [1996] 3 N.Z.L.R. 24 at p.35:


_____________________ page break _____________________

-8-

“There has been no law or practice in New Zealand precluding the Judge from providing guidance to the jury in either of those ways. A reference to investment or buying power, with a practical comparison such as the cost of a house or car, will often be helpful; but is is undesirable to add to the specific duties falling on a Judge in summing up, and in New Zealand I would not go to the length of laying down any requirement to that effect. If the Judge elects not to give that degree of guidance, the quantum of the jury award may be more readily reviewed.

Counsel are certainly entitled in New Zealand to put to the jury the figures or range of figures which they contend to be appropriate.

Suggesting a range of figures is also open to the Judge in New Zealand, provided that he or she makes it clear that his range is not binding on the jury; but it is a course on which in many cases Judges will justifiably refrain from embarking, for selecting the range would be a delicate exercise inviting challenge on appeal. Suggestions of usurpation of the jury’s function could also have added colour. It is significant that, notwithstanding English and Australian legislation giving Judges or appellate Courts a larger role, in New Zealand the Defamation Act, 1992, s.33, provides that, where a verdict is set aside on the ground that the damages awarded are excessive or inadequate, the Court by which the verdict is set aside may, with the consent of the plaintiff and of every defendant against whom the award was made, substitute its own award of damages. Our legislation has thus demonstrated a continuing faith in juries, bearing in mind that by the Judicature Act, 1908, s.19A, any party to civil proceedings in the High Court in which only pecuniary damages are claimed has a prima facie right to trial before a jury.

In so far as the English and Australian authorities now favour comparisons in summings up with personal injuries awards, they of course can have no application in New Zealand, damages for personal injury by accident being substantially excluded by the accident compensation legislation.”

159. The principle of maintaining an appropriate relationship between damages awarded for personal injuries and those awarded for defamation was referred to in Crampton v. Nugawela, (1996)41 N.S.W.L.R.176 (a decision of the Supreme Court of New South Wales, Court of Appeal) by Giles AJA who stated:


_____________________ page break _____________________

-9-

“Mahoney ACJ has discussed the principle elements of loss for which general damages are awarded, namely personal distress, damage to character and reputation, and vindication. His Honour has adverted to the similarity between damages in cases of defamation and damages in cases of personal injury in that both are essentially normative (neither a damaged reputation nor a lost limb has an objective value, and the value is that which is placed upon them by the judge or jury called upon to assess general damages), and to the difference between damages in those two cases in that, while both are said to be compensatory, there are differences in that for which each compensates. Maintaining an appropriate relationship between the scale of values in the two classes of case, as is required by Carson v. John Fairfax and Sons Ltd . (see also in England John v. MGN Ltd. [1996] 2 All ER 35) is itself a normative exercise. Maintaining an appropriate relationship does not impose a straitjacket, but permits recognition of the importance, where necessary, of vindication of a seriously damaged reputation.”

Decision

160. The place of the jury in our legal system as the decision-maker on the issue as to whether there has been a defamation or not has been keenly guarded by the common law. That is not in issue in this case.


161. This appeal raises issues as to the level of damages. The three issues raised by the Appellant relate to the quantum of the damages and the information which may be given to the jury.


162. In principle it is open to the court to provide guidelines on the charge to be given by a judge to a jury in libel cases. No law precludes the giving of guidelines. Whereas this issue was raised in the High Court it was not pursued for reasons explained by counsel. However, it has been argued on appeal and, in the special circumstances of the case, is a matter for decision.


_____________________ page break _____________________

-10-

Further guidelines on levels of damages.

163. In general, I favour the giving of guidelines to a jury on the level of damages. Information does not fetter discretion. If this is perceived as a more active approach by the judge I believe it is in the interest of justice. The legislature could legislate but in its absence more guidelines would, I believe, help juries and the administration of justice. Guidelines would assist in achieving consistent and comparable decisions, which would enhance public confidence in the administration of justice.


164. There is a benefit to the administration of justice in such an approach. Whilst maintaining at all times the paramount position of the jury in determining the damages, specific information would aid decision-making and the maintaining of an appropriate relationship with the awards of damages in other areas. Such information as is deemed appropriate could be given in more specific guidelines.


165. Information should be given to the jury of previous awards in libel cases made or affirmed by the Supreme Court. Already a court may refer to the type of libel in another case. Thus, the learned High Court judge referred to a case ( Barrett v. Independent Newspapers Ltd. ) and said it afforded the jury great assistance in placing the nature of the defamation in a scale, because that revolved around a statement by a journalist that a politician pulled at his beard. It is a short, but useful, extra step to refer to the award. In view of the fact that this is a small jurisdiction and because of the lack of technology to date to keep full and comparative statistics, there would not be very many cases, but I believe they would assist a jury. For example, in this case the words of Finlay C.J. in McDonagh v. News Group Newspapers Limited Unreported, Supreme Court, 23 November, 1993 are relevant and are referred to later in this judgment.


_____________________ page break _____________________

-11-

166. The jury should be able to compare the value of what courts usually award to people in personal injury actions. Compensation is a notional remedy in both instances. The lame do not walk after an award of compensation. The defamed do not cease to have been defamed after an award of damages. An order of damages is an artificial form by which a court gives a remedy to an injured person.


167. It is quite reasonable to have proportionality in the wider scheme of damages. Thus, a reference to a case which imposes a cap on general damages, might be useful. However, rather than reference to general damages in catastrophic injury cases, where there may be issues of consciousness etc., the tariff for injuries such as an eye, a leg or an arm may be helpful. It is entirely reasonable that there be a degree of uniformity, consistency, a sense of comparability, of rationality, in the wider scheme of damages.


168. The place of the jury, which is at the core of a trial on libel, is not diminished by informing it of issues relevant to the proportionality of damages. It does not detract from its function but rather enhances it. In John v MGN Ltd . [1996] 2 All ER 35 Sir Thomas Bingham M.R. stated at pp. 48-49:


“A series of jury awards in sums wildly disproportionate to any damage conceivably suffered by the plaintiff has given rise to serious and justified criticism of the procedures leading to such awards. This has not been the fault of the juries. Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd.”

169. In Ireland a jury is a well-educated and a conscientious body. It is the decision-making body. However, every person in arriving at a decision is aided by


_____________________ page break _____________________

-12-

comparative, relevant information. It is that type of information which I believe should be given to the jury.

170. There are difficulties in obtaining adequate and correct information on court cases pending modern information technology and modern management of cases and their awards in the Irish court system. There are difficulties arising because of the small nature of the jurisdiction and the consequent lack of volume of cases, in comparison to the volume of cases which arise in a jurisdiction such as England and Wales. There is the variability of the cost of living and related prices. However, the principle that juries be given information, on previous libel awards confirmed or determined by the Supreme Court, on damages in personal injury cases, on the purchasing power of an award and the income it might produce and on the level of award deemed appropriate, may be valuable tools for a jury arriving at a reasonable and proportionate decision. There is nothing in principle which precludes figures being given by counsel or a judge. A comparative study of figures, where appropriate, may be very useful. Consequently, on the first issue - whether the charge to a jury should contain further guidance on the level of damages - I would uphold the Appellants’ submission.


More searching scrutiny

171. The second issue raised by the Appellant, as to whether the appellate court should subject large awards of damages to a more searching scrutiny than hitherto has been the custom, follows logically from the first issue. The Appellant submitted that the correct approach under the common law and the Constitution was that set out by Neill L.J. in Rantzen v. Mirror Group Newspapers (1986) Ltd. [1993] 4 All ER 975 at p.994:


_____________________ page break _____________________

- 13 -

“... it seems to us that the grant of almost limitless discretion to a jury fails to provide a satisfactory measurement for deciding what is ‘necessary in a democratic society’ or ‘justified by a pressing social need’. We consider therefore that the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has been regarded as the barrier against intervention should be lowered. The question becomes: could a reasonable jury have thought that this award was necessary to compensate the Plaintiff and to re-establish his reputation?”

172. The necessity to be more specific on the concepts of a reasonable decision and proportionality was referred to by Carswell LCJ in McCarton Turkington and Breen v. Times Newspapers Ltd. [1998] N.I. 358 , 381 , after reviewing the changes in the law of the United Kingdom:


“What the jury should in my view receive from the judge is guidance of a more concrete nature pointing their minds towards a level of damages which represents a proper and proportionate solatium. It is of limited assistance to jurors to tell them that the level of damages must be proportionate, for it gives them no more practical guide then telling them to be reasonable. It is of much more practical assistance to give them comparisons with accepted levels of damages for personal injuries, with a suitable caveat, or details of previous awards made by the Court of Appeal in this jurisdiction or in England.”

173. The Court of Appeal in Northern Ireland compared the publication in question with others published and considered carefully the award in each. The Court analysed other decisions of the Court of Appeal in England on excessive damages and compared and contrasted the amounts therein, before determining that the amount was excessive in that case.


_____________________ page break _____________________

-14-

174. The principle of Irish law regarding an appeal against the amount of damages was described in Barrett v. Independent Newspapers Ltd . [1986] IR 13 by Finlay C.J. at p.19 as follows:


“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. Secondly, it is clear that whilst the damages in this case at least, where no question of punitive or exemplary damages arises, are fundamentally compensatory in form, that the plaintiff is entitled not only to be compensated for the damage to his reputation arising from the publication of the defamation, but also for the hurt, anxiety and distress to him arising by its publication and by the subsequent conduct of the defendant right up to the time of the assessment of the damages.”

175. However, in spite of the special sanctity referred to of the jury assessments Irish law requires that the decision of the jury be reasonable and proportionate. In Barrett v. Independent Newspapers Ltd . Finlay C.J. determined at p.20:


“... notwithstanding the fact that this is clearly a case in which a jury would be entitled to award really substantial damages ... the sum of £65,000 awarded by the jury is so far in excess of any reasonable compensation for the allegation which was made, that it should be set aside.”

176. In the same case Henchy J. stated at p.23:


“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.”

_____________________ page break _____________________

- 15 -

177. Henchy J. referred to the lack of help given to the jury in assessing damages. He stated at pp. 23-24:


“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 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.”

178. He then referred to the sum awarded and held at p.24:


“The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it 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.”

179. The necessity of reasonableness and fairness was noted by Henchy J. He stated at p.24 that:


“ ... 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. I would allow the appeal ...”

_____________________ page break _____________________

-16-

180. In these statements Henchy J. is making a comparative analysis of awards in jury cases. I can see no reason in principle why this should not be available to a jury. I agree with the approach of Henchy J. and adopt it. Whilst there is a special sanctity in respect of jury assessments in libel trials the decision must be reasonable and proportionate. It may be reviewed on appeal on such criteria.


181. The quest to determine in the appellate court whether the decision is reasonable and proportionate could be supported by guidelines on damage levels to the jury in the High Court, which could be replicated in the appellate court. This approach enables the system to be more consistent and comparative and to be seen to be more rational.


Was the award excessive?

182. On the third issue - whether the award of £300,000 was excessive - a recent decision of the Supreme Court is most helpful. In McDonagh v. News Group Newspapers Limited (Unreported, Supreme Court, 23rd November, 1993) which was a case where, inter alia, the words were determined to mean and be understood to mean that the Plaintiff was a sympathiser with terrorist causes, Finlay C.J. pointed out at p.15 of his judgment:


“... 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.”

183. He also pointed out that by reason of the person involved the seriousness may be somewhat aggravated, saying, again at p.15:


“To an extent the seriousness may be somewhat aggravated by the fact that it is an accusation which has been made against a person who has a

_____________________ page break _____________________

-17-

role, by reason of his profession and by reason of his standing as a member of the Bar, in the administration of justice.”

184. Having described the function of a lawyer in the situation he continued at p. 1 6:


“The combined accusations made against the Plaintiff are that he failed or was likely to fail completely to do that, and that instead as a piece of major professional misconduct he abused the function which had been entrusted to him by his client.”

185. Of the amount of damages awarded by the jury, £90,000 for libel, he concluded at p.17:


“A statement which makes that accusation and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top end of the permissible range, is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside. I would, therefore, dismiss the appeal.”

186. There are strong similarities between the facts of that case and this case. Both plaintiffs have a standing of importance in the community. Both sets of words related to very serious defamatory matters. However, the award in the McDonagh case was considered to be at the top of the permissible range. There were additional aggravating matters in this case, as set out previously. But even allowing for the aggravating factors in this case it is clear that the award is “beyond that range in the sense that it is so incorrect in principle” that it should be set aside.


_____________________ page break _____________________

-18-

187. In light of the principles as previously set out I am satisfied that the amount was excessive and should be reduced to £150,000.


Conclusion

188. In principle it is open to the Court to provide guidelines on the charge to be given by a judge to a jury in libel cases. Guidelines on levels of damages given by a judge would aid the administration of justice. Guidelines would give relevant information and aid comparability and consistency in decision-making. Such guidelines would relate only to the level of damages - not the kernel issue as to whether or not there had been defamation. Thus, such guidelines would not impinge of the area traditionally viewed in common law jurisdictions as a matter quintessentially for the jury. More specific guidelines on the level of damages would help juries and the administration of justice by bringing about more consistent and comparable awards of damages and awards which would be seen as such. Specific guidelines would also inform an appellate court in its determination as to whether an award is reasonable and proportionate. The award in this case was excessive and on the principles of reasonableness and proportionality I would reduce it to £150,000.



© 1999 Irish Supreme Court


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IESC/1999/63.html