S59 McDonagh -v- Sunday Newspapers Ltd [2017] IESC 59 (27 July 2017)

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Cite as: [2017] IESC 59

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McDonagh -v- Sunday Newspapers Limited
Neutral Citation:
[2017] IESC 59
Supreme Court Record Number:
Court of Appeal Record Number:
2014 116 COA
Date of Delivery:
Supreme Court
Composition of Court:
Denham C.J., O'Donnell Donal J., McKechnie J., MacMenamin J., Dunne J., Charleton J., O'Malley Iseult J.
Judgment by:
Denham C.J.
Damages award excessive.
Judgment also by Judge McKechnie
Judgments by
Link to Judgment
Denham C.J.
O'Donnell Donal J., Charleton J., O'Malley Iseult J.
O'Donnell Donal J.
Denham C.J., Charleton J., O'Malley Iseult J.
Dunne J.
Denham C.J., O'Donnell Donal J., Charleton J., O'Malley Iseult J.
McKechnie J.
MacMenamin J.
MacMenamin J.
McKechnie J.

Record No. S:AP:IE:2016

Denham C.J.
O'Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.

Martin McDonagh


Sunday Newspapers limited


Judgment delivered the 27th day of July, 2017 by Denham C.J.

1. This is an appeal by Martin McDonagh, the plaintiff/appellant, who is referred to as “Mr. McDonagh”. Sunday Newspapers Limited, the defendant/respondent, is referred to as “the Newspaper”.

2. Mr. McDonagh claimed that he was libelled in an article entitled “Traveller is new drug king”, published by the Newspaper on the 5th September, 1999. The article described a seizure of hash and ecstasy worth IR£500,000 in Tubercurry, County Sligo, on the 30th August, 1999. The article identified Mr. McDonagh as the man behind the incident, a drug baron, a person who had amassed a fortune without any visible means of income, a moneylender, and a criminal.

3. Mr. McDonagh issued proceedings on 17th January, 2000. A statement of claim was received on the 2nd February, 2000, which claimed that the article in its natural and ordinary meaning inter alia meant that Mr. McDonagh

        a. is a criminal

        b. is a drug dealer

        c. is a tax evader

        d. is a loan shark

4. The Newspaper served its defence in April, 2002, which pleaded justification and qualified privilege.

The High Court - Judge and Jury
5. The trial of these proceedings commenced on the 20th February, 2008, before de Valera J. and a jury, and ran for five days.

6. During the trial it was accepted by Mr. McDonagh that he was a tax evader and a criminal.

The Issue Paper
7. The issue paper for the jury was answered as follows:-

Question 1: Has the [Newspaper] proved:

i. that [Mr. McDonagh] is a drug dealer?

Answer: No

ii. that [Mr. McDonagh] was a loan shark?

Answer: No

iii. that [Mr. McDonagh] was a tax evader?

Answer: Yes

iv. that [Mr. McDonagh] was a criminal?

Answer: Yes

Question 2: If the answer to one or more parts of Question 1 is no, but the answer to one or more parts of Question 1 is yes, do the words not proved to be true materially injure [Mr. McDonagh’s] reputation having regard to the truth of the remaining charges?

Question 3. If the answer to 2 is yes, assess damages.


The Court of Appeal
9. The Newspaper appealed to the Court of Appeal. On the 19th October, 2015, the Court of Appeal (Kelly, Irvine and Hogan JJ.) allowed the Newspaper’s appeal against the entirety of the jury verdict.

10. Hogan J. held, in conclusion, that the jury verdict so far as it concerned the drug dealing allegation could not be allowed to stand. He held that the evidence overwhelmingly pointed to the conclusion that Mr. McDonagh was a drug dealer associated with the drugs seizure at Tubercurry. He stated:-

“If the allegation was correct, the Newspaper had a constitutional right to publish this information by virtue of Article 40.6.1.i and that right cannot be compromised by a jury verdict which was, in essence, perverse.”

11. As to the issue of loan sharking, Hogan J. held that it was more limited, that it might have been open to a properly instructed jury to find for Mr. McDonagh on that allegation. He described appropriate instructions, but held that as the jury was not so instructed, that the verdict on the loan sharking allegation could not be allowed to stand. Thus, the Court of Appeal allowed the Newspaper appeal against the entirety of the verdict. Hogan J. held that as the drug dealing allegation was found to be true, that part of Mr. McDonagh’s claim would be dismissed. He directed a new trial on the loan sharking allegation. He pointed out that it was therefore unnecessary for him to address the issue of quantum of damages.

12. As to the lack of a written answer to Question 2 on the issue paper for the jury, Hogan J. held that it was impossible to know how or why the jury failed to answer “an essential question which they were required by law to answer.” He held:-

        “Quite independently of any other consideration this in itself would have been enough to justify the setting aside of the jury verdict, as it cannot be said that the jury returned a verdict in accordance with law or that they gave any consideration to the implications of a defence which the law afforded to the newspaper.”
The Determination
13. Mr. McDonagh sought leave to appeal from the Supreme Court. In a determination dated the 18th February, 2016, [2016] IESCDET 27, the Supreme Court granted leave to appeal on five grounds. It was decided:-
        “9.2. … in the view of the Court, the following issues arise as being issues of general public importance, or that it is in the interest of justice that they should be determined by this Court. These are (a) whether it is open to the Court of Appeal to reverse a jury verdict that a statement was defamatory of the plaintiff arrived at even in the face of strong evidence to the effect that the defending allegation was true; (b) whether the media have a constitutional right to publish material, and that this right cannot be compromised by a jury verdict to the effect that such material was defamatory of the plaintiff; (c) whether it was necessary for the jury to be warned by the trial judge that, objectively speaking, the plaintiff’s credibility had been compromised; (d) whether the Court of Appeal is entitled to reverse the verdict of the jury on the grounds that it was perverse, if some other alternative explanation was open to the jury; (e) the present legal status in the State of the rule in Browne v. Dunn, in circumstances where little of the evidence adduced by the newspaper, either in regard to the allegation of drug dealing, or loan sharking, had, in fact, been directly challenged in cross-examination.

        9.2. In the view of the Court, these are issues which each reach the constitutional threshold. (a) to (c) deal with constitutional rights of free expression, and the role of juries in defamation proceedings. (d) deals with the power of an appeal court to reverse jury verdicts. (e) deals with an important evidential rule. Each of the matters is of general public importance, and is also matters where the interests of justice very clearly arise in this, and other cases. The Court, therefore, grants leave to appeal under Article 34.5.3 of the Constitution, on each of the grounds (a) to (e) set out above, and the Court so orders.”

The Supreme Court
14. The majority decision of the Court, was delivered by Charleton J. McDonagh v, Sunday Newspapers Limited [2017] IESC 46. Having analysed the trial in the High Court, and the decision of the Court of Appeal, he held that the Court of Appeal was incorrect in the order which it made, and that its order must be reversed in full.

15. Charleton J. concluded:-

        “47. Noting that the second unanswered jury question may be relevant and mindful of the passage of time back to the relevant events, which is now close to 18 years, it is proposed to hear counsel on the jurisdiction of this Court; with particular emphasis as to the whether another hearing on this matter is needed as to the issue of question 2 or as to damages or as to whether the High Court should rehear the matter.”
16. The Court invited written submissions on these issues, and also heard oral submissions.

17. The issues before the Court included (a) whether another hearing is needed on the issue of Question 2 of the issue paper; (b) damages; (c) whether the High Court should rehear the matter.

Question 2
18. On the 6th March, 2008, the High Court (de Valera J.) recorded the following questions as having been put to the jury and the answers as:-

        “The following question having been put to the Jury

        1. Has the Defendant proved:

        a) That the Plaintiff was a drug dealer.


        b) That the Plaintiff was a loan shark.


        c) That the Plaintiff was a tax evader.


        d) That the Plaintiff was a criminal


        If the answer to all parts of Question 1 is yes, proceed no further.

        2. If the answer to one or more parts of Question 1 is no, but the answer to one or more parts of Question 1 is yes, do the words not proved to be true materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges?

        If the answer to 2 is no, proceed no further

        3. If the answer to 2 is yes, assess damages.

        and having been answered as follows:

        Question 1)

        a) No

        b) No

        c) Yes

        d) Yes

        Question 2) Yes

        Question 3) €900,000”.

19. The High Court then ordered the Newspapers to pay €900,000 damages to Mr McDonagh, and costs. The Newspapers undertook to pay Mr. McDonagh €90,000 on account of the damages, and 10% of the taxed costs, and ordered interest on the balance of the damages as may ultimately be payable at the statutory rate of interest. The High Court placed a stay on the execution of the balance of the order until the final determination.

20. On the 30th January, 2009, the High Court (de Valera J.) amended the first order to record that there was no answer to Question 2.

Question 2 - Jurisdiction - Submissions by the Newspaper
21. Counsel for the Newspaper submitted that the Supreme Court did not have jurisdiction to answer Question 2. It was submitted that Question 2 is based on s.22 of the Defamation Act, 1961, which provides the defence of justification - a complete defence. Thus, it was submitted, it was vital that the jury answer Question 2.

22. It was submitted that a question was asked clearly and should have been answered. It was submitted that we simply cannot know what the jury did, that any inference would only be a supposition. While the jury may have understood the question and proceeded, it was submitted that there was a strong possibility that the jury did not understand Question 2, and thought it was entitled to ignore it.

23. It was argued that the charge was not such as to enable this Court to exclude the possibility that the jury misunderstood Question 2.

24. It was submitted that the jury may not have understood the nature and quality of the exercise involved in weighing up and comparing the meanings in Question 1, on the evidence.

25. In all the circumstances, the Newspaper submitted that the Court should not be content that the verdict of the jury was reached in accordance with law, and that there was no option but to set aside the verdict.

26. It was submitted that it would not be proper for this Court simply to answer Question 2, as if it were the jury. That would involve the Court putting itself in the place of the jury and assessing evidence.

27. This Court must adapt the same approach of the Court of Appeal, it was submitted, and set aside the jury verdict.

28. Furthermore, it was submitted, if there is to be a retrial it must be a retrial on all issues, including two of which the jury found in favour of Mr. McDonagh at the trial.

29. It was submitted that Question 2 was before the Court of Appeal, but that its finding were not part of the ratio decidendi of the decision, due to its findings on Questions 1(a) and (b). That the Court of Appeal had held obiter that the jury’s failure to answer Question 2 would have been enough to set aside the jury verdict, had it come to it.

30. Also, that the Court did not address Question 2 in the Determination. Thus, it was argued, the issue of Question 2 requires an order of the Court of Appeal, and a grant of leave to appeal to the Court, before the Supreme Court could decide the issue.

31. Counsel for Mr. McDonagh made submissions arguing that the jury had, in fact, answered Question 2. In the alternative, that the only reasonable inference is that the jury had in fact answered Question 2. In the alternative, that the only reasonable inference is that the jury intended to answer Question 2 in the positive.

Question 2 - decision
31. I have considered carefully the oral and written submissions of the parties on the issue of Question 2, and I am satisfied that the submissions made on behalf of Mr. McDonagh presented the correct analysis.

32. Thus, I am satisfied that the jury did answer Question 2, and did so positively. This follows from the wording on the issue paper, and the manner in which the questions were answered by the jury. Questions 1, 2 and 3 were sequential and cross referable. Thus Question 1 asked:-

        1. Has the Defendant proved:

        a) That the Plaintiff was a drug dealer.


        b)That the Plaintiff was a loan shark.


        c) That the Plaintiff was a tax evader.


        d) That the Plaintiff was a criminal


        If the answer to all parts of Question 1 is yes, proceed no further.

        2. If the answer to one or more parts of Question 1 is no, but the answer to one or more parts of Question 1 is yes, do the words not proved to be true materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges?

        If the answer to 2 is no, proceed no further

        3. If the answer to 2 is yes, assess damages.”

      The only place where the word “Answer” appeared with a blank space beside it was after Question 1 (a), (b), (c), (d). The jury was told on Question 1

        “If the answer to all parts of Question 1 is yes, proceed no further.”
However, the jury had answered some questions “yes” and some questions “no”. The issue paper addressed the jury on Questions 2:-
        “If the answer to one or more parts of Question 1 is no, but the answer to one or more parts of Question 1 is yes, do the words not proved to be true materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges?”
We know that the jury’s answer was a mixture of “no” and “yes”.

The jury is told in Question 2:

        “If the answer to 2 is no, proceed no further.”
Thus they were instructed that if the answer was “no” they were to proceed no further. But the answer was, partially “yes”, and partially “No”, and this is addressed in Question 3, which required of the jury:-
        “3. If the answer to 2 is yes, assess damages.”
Thus the answer to Question 2 is found in the answer to Question 3, i.e. the assessed damages. Therefore, the jury did answer Question 2.

33. Also, if the answer to Question 2 was “no”, it would not have written “no”, but merely followed the instruction to “proceed no further.”

34. The fact that the jury assessed damages shows that the jury understood and answered Question 1 with “yes” and “no” at the various sub questions, answering Question 2 by reading it and proceeding, as required, under Question 3 to assess damages.

35. Thus, it is not a question of seeking any inference as to what the jury did or did not do. The jury followed the instructions on the issue paper and answered the questions.

36. Consequently, it is not a situation where the Court is making any supposition as to what the jury did.

Not in determination
37. An issue raised is whether the Court has jurisdiction on the issues of Question 2 and damages as they were not expressly stated in the determination.

38. In all the circumstances, while Question 2 was not expressly referred to in the Determination, it is a logical consequence of the appeal which has opened, and been argued at length before the Court.

39. I am satisfied that the Supreme Court has jurisdiction, and indeed a duty, to decide consequential issues in an appeal. In this case Question 2 falls into that category.

40. For the reasons given, I am satisfied that the jury did answer Question 2, in the affirmative, and proceeded to assess damages. Thus, the argument made on behalf of the Newspaper fails.

41. In the circumstances, it is open to the Court to consider the issue of damages.

42. The jury awarded €900,000 damages to Mr. McDonagh. The High Court granted a stay, imposing a term whereby the newspaper was ordered to pay interest from the date of judgment at the statutory rate of interest on judgment debts, as may be applicable from time to time, on the balance of any damages ultimately found to be payable. Counsel for the Newspaper submitted that if this Court upheld the award of €900,000, and upheld also the part of the order providing for the payment of interest, then a further sum of, perhaps, €645,000 would become payable, being a total of €1,545,000.

Newspaper Submissions on Damages
43. The Newspaper submitted, inter alia, that the damages awarded were disproportionate. Counsel for the Newspaper referred to jurisprudence from the ECtHR, which emphasised that large and unpredictable awards required careful scrutiny given their chilling effect on freedom of speech. It was submitted that it was a special concern in a time of falling circulation of mainstream newspapers, which, it was stated, “have a particular responsibility for the gathering and dissemination of reliable news”.

44. Counsel referred to the recent decision of the ECtHR which addressed the process in Ireland, of the award of damages in defamation cases, in Independent Newspapers (Ireland) Limited v. Ireland, Application No. 28199/15, Strasbourg 15 June 2017. The ECtHR considered, amongst other issues, the adequacy and effectiveness of the domestic safeguards against disproportionate awards.

45. Counsel for the Newspaper submitted that the above case addressed the issue of the process.

46. Counsel stated that the test, however, was one of proportionality. The real question was how the Court was to assess proportionality. Counsel referred to (a) the gravity of the libel, (b) the extent of publication, (c) the conduct of the Newspaper, and the impact of the defamation. Counsel argued that the damages awarded by the jury fails the proportionality test.

47. Inter alia, counsel for the Newspaper submitted that the order dealing with interest was unfair and inappropriate.

48. Counsel submitted that if this Court were to find that the damages were excessive, that this does not mean that it would be necessarily appropriate for this Court, if it agrees that the damages awarded by the jury were excessive, simply to substitute its own award. Counsel accepted that the Court has such jurisdiction (pointing out that it did so in McEntee v. Quinnsworth, (Unreported, Supreme Court, 7th December, 1993); in Crofter v. Genport Properties (No. 2) [2005] 4 I.R. 28 (where there was no jury in the High Court), and in Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214; [2014] IESC 79. However, counsel argued that in this case it would be preferable to have a re-trial. And, if there is to be a re-trial on the issue of damages, there should be a re-trial on all issues, not just damages.

Mr. McDonagh’s Submissions on Damages
49. Counsel for the appellant submitted that the jury had awarded Mr. McDonagh very substantial damages. However, that fact alone, it was argued, does not mean that the award should not stand. Counsel opened relevant case law and submitted that jury assessments of damages should only be disturbed in exceptional cases.

50. Counsel for Mr. McDonagh submitted that, in the circumstances of this case, given the gravity of the libel, the effect on Mr. McDonagh, the extent of the publications, and the conduct of the Newspaper, it warranted a very substantial award.

51. It was submitted that while the award of damages was high, it was not disproportionate. To be accused of loan sharking is a very serious defamation.

52. Mr. McDonagh gave evidence of the affect of the defamation on his family. He feared for his life. Posters were put up around Sligo about him. His life was turned upside down. His friends have gone. He was no longer served in any bar in Sligo. Mr. McDonagh’s daughter said the defamation tore their family apart.

53. As to the extent of the publication, it was published in the biggest selling newspaper, with front page headlines, including, ‘Millionaire’, ‘Drugs King’ and ‘The Shark’.

54. As to the Newspaper’s conduct, it was published while Mr. McDonagh was midway through a seven day investigation by the Gardaí, and there was no attempt to seek a comment from Mr. McDonagh.

55. It was argued also on behalf of Mr. McDonagh that the fact that the Newspaper persisted in a plea of justification was a serious factor.

56. Counsel for Mr. McDonagh submitted that this Court should determine finally this matter after 18 years. It was submitted also that the enormous costs incurred in the litigation to date, and the undesirability of adding to those costs through a re-trial is a factor to be considered.

Damages - decision
57. The amount of damages must be fair and proportionate to both a defendant and a plaintiff.

58. The assessment by a jury of damages for defamation “has had a very unusual and emphatic sanctity”: Barrett v. Independent Newspapers Ltd [1986] I.R. 13 at p. 19.

59. Appellate courts have been slow to interfere with assessments by juries in defamation cases. However, if the award is so disproportionately high the award should not stand. As Henchy J. stated in Barrett v. Independent Newspapers Ltd [1986] I.R. 13 at p. 24

        “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.”
60. In de Rossa v. Independent Newspapers plc [reference] Hamilton C.J., giving the majority decision, held:-
        “…, 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.”
61. In that case Hamilton C.J., assessed the gravity of the libel, the effect of the publication, and the conduct of the defendant.

62. Hamilton C.J. dismissed the appeal, stating:-

        “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 plaintiff was involved in or tolerated serious crime and that he personally supported anti-semitism and violent communist oppression.

        Bearing in mind that a fundamental principle of 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 plaintiff.”

63. In that case, in a dissenting judgment, I indicated that I favoured the giving of guidelines to a jury on the level of damages. I stated that that information does not fetter discretion; such an approach is in the interests of justice; that the Legislature could legislate, but in its absence more guidelines would help juries and the administration of justice. I concluded:-
        “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 on 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 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.”
This judgment of 1999 was ten years before the Defamation Act 2009.

64. As Dunne J. stated in Leech v. Independent Newspapers (Ireland) Limited [2014] IESC 79:-

        “This is a case which pre-dates the enactment of the Defamation Act 2009 which introduces new provisions, inter alia, in relation to damages particularly, in relation to the directions to be given to a jury by the trial judge in respect of a trial in the High Court and the matters to which regard shall be had in assessing damages. Prior to the 2009 Act, the trial judge was limited as to the directions that could be given to a jury on the subject of the quantum of damages. The assessment of damages was and remains a matter entirely for the jury but by virtue of the provisions of the 2009 Act it is now possible for the trial judge to give more detailed directions to a jury as to the assessment of damages. The position was different when these proceedings came to trial before the High Court.”
65. This appeal also was heard in the High Court before the 2009 Act.

66. In Independent Newspapers (Ireland) Limited v. Ireland the ECtHR stated:-

        “84. The starting point when assessing whether the interference complained of was necessary in a democratic society is whether the amount of damages was unusual by domestic standards. This it clearly was, and the parties did not dispute it. In the High Court, the quantum of damages was much higher than any previous award in a defamation case. Likewise, the final award was far in excess of any the Supreme Court had previously allowed to stand. The unusual size of the award, at first instance and on appeal, is such as to trigger the Court’s review of the adequacy and the effectiveness of the domestic safeguards against disproportionate awards (Independent News and media, cited above, paragraphs 113, 115 and 118, and Tolstoy Miloslavsky, cited above, paragraphs 49-51).

        85. As the Court has indicated previously, it is not necessary to rule on whether the impugned damages’ award had, as a matter of fact, a chilling effect on the press. As a matter of principle, unpredictably large damages’ awards in libel cases are considered capable of having such an effect and therefore require the most careful scrutiny (see, amongst other authorities, Independent News and Media, cited above, paragraph 114, and MGN Limited v. United Kingdom, no. 3940/04, paragraph 201, 18 January 2011).

        90. The Court has recognised that a considerable degree of flexibility may be necessary to enable juries to assess damages tailored to the facts of the particular case (see Tolstoy Miloslavsky, paragraph 41). Nevertheless, it has also stressed the important role played by the trial judge’s direction in a trial by jury, whether civil or criminal (see, for example, Simon Price v. United Kingdom, no. 15602/07, paragraph 34, 15 September 2016, and Dallas v. United Kingdom, no. 38395/12, paragraph 75, 11 February 2016). In the specific context of defamation cases, while the jury’s assessment of damages may be inherently complex and uncertain, the uncertainty must be kept to a minimum see Independent News and Media, cited above paragraph 114) and the nature, clarity and scope of the directions provided to the jury - considering moreover the “unusual and emphatic sanctity” attached to jury awards in defamation cases under domestic law (see paragraph 24 above) - are key in this regard. In the instant case the trial judge had to operate under the strict constraints imposed by the Supreme Court’s case-law. As a result, his directions remained inevitably quite generic, which, as is clearly reflected in his charge to the jury and his subsequent exchange with counsel, caused him both frustration and regret (see paragraphs 17 - 18 above).

        91. In the independent News and Media case, the Court identified two concrete indications in the charge to the jury in those proceedings (see Independent News and Media, cited above, 123). This served to distinguish that case from the Tolstoy-Miloslavsky case, in which the Court found that the scope of judicial control at trial did not offer adequate and effective safeguards against a disproportionately large award.

        92. The Court observes that the traditional limitations on providing more specific guidance to the jury regarding the level of the award applied in the present case as they did in the Tolstoy Miloslavsky and Independent News and Media cases (see 122 of the latter judgment). However, the type of concrete indications identified in the latter case are not to be seen in the present case. While it cannot be said that the jury’s discretion was without limit, the Court does not consider that the direction given in this case was such as to reliably guide the jury towards an assessment of damages bearing a reasonable relationship of proportionality to the injury sustained by Ms L. to her reputation and private and family life. Therefore, and as evidenced by the Supreme Court finding that the jury award was excessive and disproportionate, the first safeguard referred to in paragraph 1134 of the Independent News and Media judgment proved ineffective.”

67. The direction given in the High Court in this case was similar to that in the above case and consequently, on the issue of the process, the above case is relevant. It raises a concern that, in the circumstances, the direction given in this case was not such as to reliably guide a jury towards an assessment of damages bearing a reasonable relationship of proportionality to the injury sustained by Mr. McDonagh.

68. On the issue of jurisdiction, the issue of damages was argued before the Court of Appeal, even if not decided.

69. Therefore, in all the circumstances, which include the fact that the issue was argued in the Court of Appeal, the guidance from the ECtHR, the time which has run since the publication of the defamation, the costs which have been incurred and the further costs which would be incurred on a re-trial, plus the issue that any retrial would reasonably have to be a full re-trial, with possible appeals, it would be a fair administration of justice to assess the damages in this Court.

70. In considering the sums awarded in previous cases on defamation, the sum awarded by the jury, €900,000, is not proportionate.

71. In assessing what is proportionate I have considered:-

        (a) the gravity of the libel;

        (b) the effect on Mr. McDonagh;

        (c) the extent of the publication;

        (d) the conduct of the Newspaper.

Relevant factors include also the fact that Mr. McDonagh had a criminal record, had evaded tax, and had entered a settlement with the Criminal Assets Bureau. In addition, there was evidence which was not disputed, in relation to Mr. McDonagh and drugs. Thus, Mr. McDonagh did not enjoy a good reputation. However, this did not give a licence to defame him. It is, however, relevant to the assessment of damages.

72. In assessing the matters of proportionality and reasonableness of damages in the future, the 2009 Act is now relevant. In this case, where the 2009 Act does not apply, it is helpful to keep in mind factors such as, including but not limited to, the value of money, the average wage, and the cost of a car. The awards given in personal injuries cases have some relevance. As there are usually high special damages awarded in very serious injuries, this may cloud the comparison. However, such awards may be part of a check list in considering the overall reasonableness and proportionality of an award.

73. I am satisfied that the award of €900,000 damages, was excessive.

74. In all the circumstances, a fair, reasonable and proportionate award of damages would be a very substantially reduced sum, much nearer to the figure proposed by the Newspaper.

75. I agree with the judgments of O’Donnell J. and Dunne J.

Judgment of O’Donnell J. delivered the 27th day of July 2017

1 This case has been in existence for almost eighteen years and has been the subject of a detailed judgment in the Court of Appeal and two judgments in this Court. I do not propose to repeat the facts which have already been comprehensively considered in a number of judgments in this case. The Court has already set aside the order of the Court of Appeal in this matter. (Charleton J. McKechnie J. concurring). I concurred in the outcome, but in part because it was apparent that there was a potential disagreement as to the matters debated in this application, I did not concur in either judgment. It is now necessary to address those ancillary matters. I will refer briefly to those facts which are relevant to the intricate and rather complex issues which have arisen.

2 On the 5th September, 1999, almost eighteen years ago, the Sunday World, a newspaper with one of the largest circulations in Ireland, published a front page article with further detail on pages 2 and 3 about the plaintiff. It is beyond dispute that the thrust of this article was to allege that the plaintiff was a drug dealer, a loan shark, a tax evader, and a criminal. The article did not mention him by name but rather by an ascribed nickname. It was accompanied by a poorly pixelated photograph of the plaintiff who was recognisable. It was accepted that the article referred to, and was intended to refer to, the plaintiff.

3 More than eight years later, on the 28th February, 2008, and after a trial lasting five days, a jury found that the defendant had indeed proved that the plaintiff was indeed a tax evader and a criminal (albeit that these matters were effectively conceded on his behalf) but had failed to prove that he was either a drug dealer or a loan shark.

4 The defendant had also raised a defence under s.22 of the Defamation Act 1961. That provides, in essence, that where a jury concludes that some of the matters alleged are true and others not, it must proceed to consider if the reputation of the plaintiff has been damaged by the matters alleged which have not been found to be true, having regard to the truth of the other allegations. This has been aptly described as a liability defence, in that if successful, it means that the claim will be dismissed notwithstanding the fact that the plaintiff had succeeded on some aspects of the defamation.

5 The format of the issue paper has been analysed and debated at some length in these proceedings. The jury were invited to address the following questions in numerical sequence:

      1. Has the Defendant proved:

        (a) that the Plaintiff was a drug dealer.


        (b) that the Plaintiff was a loan shark.


        (c) that the Plaintiff was a tax evader.


        (d) that the Plaintiff was a criminal.

      If the answer to all parts of Question 1 is yes, proceed no further.

      2. If the answers to one or more parts of Question 1 is no, but the answers to (1) or more parts of Question (1) is yes, do the words not proved to be true materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges?

      If the answer to (2) is no, proceed no further.

      3. If the answer to 2 is yes, assess damages.”

6 The jury answered the questions under 1(a) to (d), no, no, yes, yes. No specific or express answer was inserted in relation to question 2 and in relation to question 3 the jury awarded €900,000 and indeed costs.

7 This was a very substantial success for the plaintiff. At the time the award represented the highest award which had ever been made by a jury. It seems probable that the jury responded to the skilful manner in which the plaintiff’s case was presented, which frankly admitted, but did not dwell upon, the plaintiff’s own poor reputation but rather tended to focus on the conduct of a member or members of the Gardaí, who it appeared, must have provided information to the newspaper at a time the plaintiff was in custody, and the newspaper’s treatment of it.

8 As might have been expected, the defendant appealed. The appeal, which at the time it was initiated, lay to the Supreme Court but was transferred to the Court of Appeal consequent on the coming into force of the 33rd amendment to the Constitution, challenged the findings of the jury in respect of the findings of drug dealing and loan sharking, raised the absence of an explicit answer to question 2 which it was said vitiated the award in any event, and finally, also appealed the award as being excessive, even on the assumption that the plaintiff was entitled to succeed.

9 The outcome of the Court of Appeal hearing was in turn a substantial victory for the defendant newspaper. Briefly, the court decided that the verdict of the jury in respect of drug dealing was perverse and must be reversed. The verdict in respect of loan sharking should be set aside but a retrial ordered in that respect. Furthermore, it was considered that the trial was in any event unsatisfactory and a retrial would be required because of the absence of an express answer to issue 2. The court did not address the damages issue, since that did not arise given the findings which it had made on the liability issues. It would in truth perhaps have been difficult for the court to have addressed the question of the quantum of damages which would have necessitated the court assuming something (that the plaintiff had been libelled) which the court had reversed, and in one respect decided the case in favour of the newspaper, and in another directed a retrial.

10 If the decision of the Court of Appeal had been final (as would have been the case had the case proceeded in the Supreme Court) then, the disposition of the case would have been relatively clear. That was a retrial on the loan shark issue alone. There would not have been a full retrial. However, decisions made by the Court of Appeal may be the subject of an application for leave to appeal to this court which may grant such leave if it is established that the appeal involves a point of law of general public importance and/or that it is in the interests of justice that an appeal be brought to the Supreme Court. The manner in which this matter has proceeded has perhaps lessons for the resolution of appeals both in the Court of Appeal and in this Court.

11 In its application for leave, the plaintiff sought to appeal and reverse the decision of the Court of Appeal in respect of drug dealing and loan sharking, and also sought to appeal the finding in relation to the question 2 issue. The grounds of appeal were formulated in a number of different ways raising different issues, but essentially, this Court granted leave on what might be described as the substantive libel issues, that is the drug dealing and loan shark issues but refused leave to appeal on the question 2 issue. On its face, this appears unremarkable. An appeal to the Supreme Court is not to be treated as simply a further round in a dispute between the parties. The issue for this Court is not whether it would have arrived at the same decision as the Court of Appeal. Rather, the jurisdiction of this Court is directed towards the determination of points of law of general importance, which normally have a potential impact well beyond the facts of the individual case. In those circumstances, it is unsurprising that the question 2 issue did not pass the threshold of raising any point of law of general importance. In essence, it raised a question of the interpretation of the jury’s answer to the issue paper which, on its face raises no issue of law, and in any event arose in circumstances unlikely to be replicated in future cases. It is also the case that the information available to this Court on a standard application for leave is necessarily limited, and is focused on the question of whether a point of law of general public importance has been identified. During the hearing of this case, and necessarily after the determination of the Supreme Court of the issues certified, the issue of question 2, and also the question of damages in respect of which the defendant has not cross-appealed, have however taken on a greater significance. I think it is fair to say that nobody seriously doubts that if possible, it would be desirable that this Court should be able to deal with these issues in the interests of clarity and finality, but an important question arises as to whether it has jurisdiction to do so.

12 That question arises because the outcome of the appeal on the certified issues was that this Court unanimously reversed the decision of the Court of Appeal in respect of the drug dealing and loan shark issues. That had the effect of setting aside the Court of Appeal’s order in that regard and therefore reinstating the jury verdict in the plaintiff’s favour on both these matters. However, it did not resolve all issues. Indeed, if the proceedings in this Court were to end at that point, the future proceedings in the case would be both complicated and unsatisfactory. The defendant maintains that the portion of the Court of Appeal judgment dealing with question 2 remains intact, and that there must be a full retrial on all issues, even though the Court of Appeal did not itself make such an order in respect of the question 2 issue: the outcome of the Court of Appeal was a limited retrial on the loan shark issue. Another possibility which was raised was that before there could be any retrial, it would be necessary to complete the consideration in the Court of Appeal by allowing the Court of Appeal to determine the damages issue. That task would pose considerable difficulty given the fact that that court had already decided that the evidence showed that the plaintiff was indeed a drug dealer, and that the jury’s finding upon which it awarded the damages was perverse. This difficulty is further compounded by the fact, as will become apparent, that a majority of this Court considers that the completion of the issue paper by the jury is not defective, or at least, not so defective as to warrant a full retrial, which it is contended the terms of the Court of Appeal judgment, but not its order, now requires. If that were to ensue, it would combine a randomness with the law of unintended outcomes which could have no appeal to anyone other than the devoted collector of examples of the fickleness of the law.

13 Somewhere in Dante’s Inferno there are souls condemned to engage in perpetual litigation as punishment for some unspeakable sin while on earth. But it is not something which should be sought by the living, or tolerated by the courts. Litigation is anything but a costless activity in terms of time, effort, stress, attention diverted from other more productive matters, and not least money. As this case vividly illustrates, proceedings are not heard in the immediate aftermath of an event and appeals are not heard a matter of days or weeks after the trial complained of, and retrials are neither free, nor as simple as re-running a laboratory experiment. As Fennelly J. said in a different context: “The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the object of expedition and economy” (Ryanair v. Aer Rianta [2003] 4 IR 264 at p. 277). There is, or ought to be, a difference between a courtroom and a casino where there is always one more bet that might restore the gambler’s fortunes. The interests of justice require a fair hearing according to established procedures and careful review, but there is also a strong incentive towards bringing finality to litigation particularly a case like this which has gone on for such a length of time, so long as that object can be achieved without breaching some fundamental rule.

14 In well constructed and forceful submissions, counsel for the newspaper argues, however, that it is simply not permissible to revisit the question of the grant of leave however convenient that might be. It is argued that the decision to refuse leave in relation to the question 2 issue is a decision which is final and binding between the parties, and unappealable, and indeed a decision of the Supreme Court to which the provisions of Article 34.4.6º of the Constitution apply. I do not agree. There are a number of circumstances upon which a court may revisit an earlier decision from the exceptional jurisdiction contemplated in Re Greendale Developments [2000] 2 I.R. 514, to the more mundane questions of applications to vary a final judgment before a final order is made, (See Belville Holdings Ltd. v. Revenue Commissioners & anor [1994] 1 I.L.R.M. 29) or applications made under the slip rule to the procedure of speaking to the minutes of the order which produced the substantial ruling in Murphy v. AG [1982] I.R. 241. See more generally the recent decision of this Court in Nash v. DPP [2017] IESC 51. The decision on the grant of leave is not itself a final decision in a case. If leave is granted on the basis that it involves a point of law of general public importance, the appeal is extant, and the court has hitherto considered that it is entitled to revise the terms of leave to ensure that the appeal is properly and fairly disposed of. Perhaps one analogy is if a limited order for discovery had been made in High Court proceedings which included the refusing of one category of discovery. If later during the case it became apparent that such discovery was necessary for the fair disposal of the case, I do not think the High Court judge would be powerless, and that the only remedy the parties might have would be to appeal that discrete issue to the Court of Appeal, which by definition would not have the knowledge or familiarity with the issue of the High Court. Of course, a court, particularly a court of final appeal, will be slow to depart from any interlocutory ruling or order made in a case, and in the case of a trial court a change of mind runs the risk of making an appeal inevitable, since by definition both parties will now have had a decision in their favour on the same issue. Nevertheless, if that is what a court considers justice requires, and if it addresses the matter fairly, and gives both sides an opportunity to make submissions, it seems to me that it would be the doing of justice rather than its defeat to maintain the capacity to revisit the question of the scope of the grant of leave while an appeal is still in being and has not been concluded, so long as that is done fairly. Different considerations may apply to a decision to refuse leave on all grounds and which therefore brings proceedings to an end.

15 This case provides a very good example. The amount of information which is available on an application for leave is of necessity less than will become available in the course of an appeal if leave is granted. The focus of any application is on the questions of issues of law which in the normal course should be readily apparent from the judgments of the court below and the submissions made by the relevant parties. It was clear from that material, that the question 2 issue was not itself a point of general public importance. However, it is apparent now that it is in the nature of a linchpin to the case since unless it can be addressed, it will not be possible to resolve the appeal. It is important to recall that the purpose of any appeal is not in itself just to decide points of law: it is to decide cases. The reasons why a party appeals is to seek an order different from that made by the court below, not merely a different determination as to law, however interesting that might be. It may therefore be in the interests of justice to argue and determine points, themselves of little general importance, which may nevertheless be decisive to the form of the order and the outcome of the case which itself raises an important but not necessarily decisive issue of law of general public importance. I consider that the Court is entitled to review the question of the scope of the issues which can be argued on this appeal, leave having been granted and the case not having been determined. Accordingly, I turn to the question of the plaintiff’s contention that the question 2 point was wrongly decided by the Court of Appeal.

16 The Question 2 Issue
I appreciate the argument that no express “yes” was inserted by the jury in answer to question 2 vitiates the entire verdict of the jury. The argument is set out powerfully in both the judgments of Hogan J. in the Court of Appeal and McKechnie J. in this Court. However, I think it is necessary to look more closely at both the issue paper and what the jury did in this case.

17 First, it is plain that the jury assessed damages indeed in the sum of €900,000. On the plain terms of the issue paper the jury can only do so “if the answer to 2 is yes”. Moreover, when the issue paper is considered more closely, it is entirely possible that the jury were being scrupulous rather than careless in following what appeared to be the instructions of the issue paper. The issue paper was structured in a format in which it instructed the jury to do a number of things in sequence, and in certain circumstances to refrain from going further. Thus, after question 1 it is stated that if the answers to all subheads of question 1 were yes, then the jury should “proceed no further”. In the event, the jury did not answer all such questions yes. Therefore, it was obliged to proceed further in this case to the second issue. That matter, although framed with a question mark, did not provide a space or include the word “answer” as questions 1(a) to 1(d) did. Instead, once again the jury was informed, indeed instructed, that if the answer to question 2 was “no” then the jury should “proceed no further”. Plainly the jury did proceed further which suggests strongly that they addressed the issue contained in question 2 and did not answer it with a “no”. Question 3 is not so much a question as an instruction. It provides that if the answer to 2 is yes, assess damages. (It is perhaps noteworthy that neither here nor in the preceding sentence is “2” referred to as a “question”, whereas in issue 2 question 1 is so described). In any event, the jury plainly did assess damages. Again, this strongly suggests that the jury considered that the plaintiff’s reputation had indeed been injured materially and that therefore damages should be assessed.

18 When the issue paper is looked at through the bright glare of hindsight, and where it is the sole issue of scrutiny, it is apparent that it could have been formulated with more precision. Certainly, if it is the case that an explicit answer was required to issue 2, then it is unfortunate that the word “Answer” was not set out with a space beside it, in the same way as had been provided for in question 1. Moreover, I think the separation of issues 2 and 3 was artificial. In truth, the third “question” was one of two alternative steps which should be taken (or not taken) depending on the view the jury took under s. 22. Thus, the issue paper can, I think, be understood as asking if the words found untrue had materially damaged the plaintiff’s reputation having regard to those matters found to be true, and if the answer was no, they should proceed no further, and if yes, they should assess damages. If understood in this way and the jury had proceeded to assess damages, no one would, I think, argue that there was any doubt whatsoever as to what the jury had done. On this reading it is the inclusion of the numeral “3” and perhaps the consequent implication that steps 2 and 3 are separate which creates any possible confusion.

19 Finally, it is I think also relevant to look at the immediate reaction of the relevant parties to the completion of the issue paper in this way. Counsel for the newspaper enquired if the jury had answered question 2. The judge’s immediate response was that it had not been necessary to do so. The fundamental issue here is whether the manner in which the issue paper was completed means that the jury has somehow failed to perform its function in this case, and if there is such uncertainty, that it is necessary to direct a retrial. In that regard, it is I think relevant that the one neutral person in the room, with a particular interest in both the issues committed to the jury and the jury’s response, was in no doubt as to what the jury had done, and indeed clearly considered that the format in which the jury had expressed its decision was one permitted by the issue paper.

20 On the other hand, it is also worth considering what other plausible contrary interpretations can be advanced. In my view, the defendant is reduced to contending that it is possible the jury deliberately ignored the substance of question 2 and proceeded to assess damages without considering the question of s. 22 of the Defamation Act, 1961 at all even though this was something which had not simply been introduced for the first time by the issue paper, but was something on which the jury had been instructed by the judge, and on which they had been addressed by the parties. Another possibility is that the jury simply did not understand question 2 and collectively either decided not to engage with it or simply did not do so and skipped to the assessment of damages. However, both these hypothesis are merely speculative, and involve moreover an assumption that a collective body in which each juror had an individual obligation to ensure that a true and fair verdict was returned, either ignored their duty or at least were so confused that they did not do it, or take the elementary step of seeking clarification from the trial judge as they were entitled to do. I see no reason to adopt such an interpretation. Indeed, it would be inconsistent with the high value ascribed to the decision of a jury in defamation matters and to the collective intelligence it embodies if appellate courts were willing to set aside jury verdicts and direct retrials on speculations such as this. It would be quite different if the jury had written an answer “no” to question 2 but then proceeded to award damages. That would be self-contradictory and create genuine ambiguity as a result of which the verdict cannot stand. Here however, I think it is quite clear that the jury did not consider that s. 22 afforded the defendant a defence in this appeal, something which was entirely logical in the circumstances. The sting of this libel had always been the dramatic contention that the plaintiff in this case was not just a drug dealer, but a “new drug king” and a “top drug dealer”. It would be hardly surprising if a jury considered that to make such an allegation in the most prominent possible way in a large circulation newspaper was of a different order to asserting that someone had evaded tax. I appreciate the argument that there is a possible inconsistency between the decision of the Court on this matter that the jury behaved rationally and reasonably in this regard and the conclusion that the damages award was excessive which necessitated a finding that on damages it had come to a conclusion outside the range that any reasonable jury could award. But that possible inconsistency is more rhetorical than real. Courts regularly overturn awards of damages by judges and juries without considering that the decision on liability is necessarily undermined. No one suggests that even if the plaintiff had been of unblemished character, that the award here was appropriate. Accordingly there is in my view no necessary linkage between the issue in respect of question 2 and the award of €900,000 damages. Accordingly, I would reverse the finding of the Court of Appeal on this issue.

21 Damages
Counsel for the defendant has submitted that if the plaintiff is to be permitted to argue that the Court of Appeal was wrong on the question 2 issue, and if the Court was to accept the plaintiff’s argument in that regard, then counsel would wish to argue the question of damages. This point had been argued in the Court of Appeal but not decided. The jurisprudence of this Court establishes that if a point has been fully argued in the court below, even if not decided because on the view taken by the trial court it was not necessary to do so, then an appellate court may consider the issue if it is necessary to resolve the entire appeal (See: AA v. Medical Council [2003] 4 IR 302). I consider particularly in the context of this case, and the manner in which the issue arises, it is only fair to permit the defendant to address this point. Furthermore, this would also facilitate the possible resolution of the entire case in a single adjudication, or at least reduce the areas for uncertainty. There are accordingly two remaining issues. Is the award of €900,000 excessive? If so, should this Court substitute its own figure or must it remit the matter to the High Court for a new trial which, as a matter of practicality and possibly logic, could necessitate a full rehearing not just on the damages issue, but on the issues of liability?

22 First, the award of €900,000 must be seen against the background of the fact that the jury found, as this Court has held it is entitled to do, that the publication meant that the plaintiff was a major drug dealer and a loan shark, and that the defendant had not established that these assertions were true. It is not unfair to observe that not least for reasons that led the Court of Appeal to reverse the finding on drug dealing and to set aside the finding on loan shark, that this was perhaps not a result that would have been predicted or anticipated since there was much evidence adduced which was damaging to the plaintiff. Nevertheless, once the jury decision was one based on evidence which could support it, it must be taken to be the starting point for the assessment for damages.

23 There is no doubt that to say falsely about someone that they are a major drug dealer and a loan shark is seriously defamatory and damaging to their reputation. When this is done in the most prominent pages of the largest circulating newspaper in the State, it gives it considerable currency. When the proceedings are defended on a plea of justification which fails, the damaging allegation will have been given much more circulation by the coverage given to the trial, and by the inevitable willingness to believe that there is no smoke without fire. For reasons which I will address in a little more detail later, I also accept that the comparison of awards with awards in personal injuries cases, and even in other defamation cases, is difficult and provides only limited assistance. Nevertheless, I have come to the conclusion that the award of €900,000 must be set aside as exceeding the range of awards which any reasonable jury could award.

24 First, the plaintiff was not identified by name. Second, he was not well known to the public generally before the publication. On the evidence of the matters which were admitted on his behalf, tax evasion, criminality, and settlement with the Criminal Assets Bureau, and indeed the evidence given of his associations and reputation in connection with the plea of justification, he was a person who could not claim to have an unblemished or good reputation. In truth, he had, and deserved, a poor reputation. Finally, the award was on any view a very large sum of money which would have meant that the plaintiff could live very comfortably for the rest of his life. Given the fact that tax is not chargeable on the award, it is worth considering how long and how hard an individual would have to work to amass such a sum, and in turn what €900,000 in 2008 or its equivalent in today’s money could purchase. I agree with all my colleagues that the award was excessive and must be set aside

25 The defendant newspaper argues, however, that once this Court has concluded that the award is excessive, it must simply remit the matter for a further trial. Even if such a further trial could be limited to the assessment of damages, that is a very unattractive prospect since it would necessarily involve almost the same evidence which was adduced at the first trial, now directed to the question of reputation albeit that the jury would not be able to come to its own conclusion on the question of defamation. However, counsel for the newspaper goes further and argues that even if the only defect in the High Court decision that was sustained in the award of the jury, was the quantum of damages, there would nevertheless have to be a full retrial of all issues, since it would not be feasible to disentangle the question of truth from reputation more generally. I am inclined to agree that if a retrial is required, even on the question of damages, that this would indeed be the case. But if so, this has the further consequence that the plaintiff would be deprived of the decision of the jury in his favour on the question of liability and the decision of this Court upholding the verdict.

26 The fact that the defendant newspaper argues for a remittal for a further jury trial, and against this Court substituting its own award, deserves comment. For very many years now, media defendants, both individual and collective, have complained that the Supreme Court and appellate courts generally have directed retrials in cases rather than substitute their own award. The provisions of s. 13 of the Defamation Act 2009, it was conceded, were introduced in response to these complaints. That section expressly permits the appellate court to substitute its own award in circumstances where it concludes that the award of damages by the jury was excessive. The commencement of these proceedings pre-dated that provision but again, as acknowledged in argument, and indeed as set out in Holohan v. Donohoe [1986] I.R. 45, the better view is that the court has always had jurisdiction and the reason that the jurisdiction was rarely exercised was because of prudential rather than jurisdictional limits.

27 Counsel on behalf of the newspaper argued, however, that the defendant was not willing to have the court substitute its award in the event that it came to the conclusion that the award of the jury exceeded any reasonable amount that a jury could award for the defamation in this case. He explained that it was considered that if the award was too high to begin with, that fact would condition any substituted award. This is a concern for what might be described in psychology as “framing”: once a high figure is introduced even as a starting point, then even a substantial reduction would leave an award which was in some objective sense, considered still to be too high.

28 This argument is of course devoid of principle. The only appeals brought by defendants to an appellate court are from awards which it is contended are not only too high, but so high that no reasonable jury could have awarded them. If awards are appealed by successful plaintiffs, it is on the corresponding argument that they were too low. Thus, in every case in which the court is invited to exercise the powers under s. 13 of the 2009 Act or the jurisdiction identified in Holohan v. Donohoe, the same theoretical framing risk arises. If correct, the appellate court should never exercise a power to substitute its own award. But the risk of framing is something with which lawyers, not just judges, are familiar since it is a feature of almost every negotiation and there are countervailing influences. Counsel seemed to suggest however, that it was only a real concern where the awards were very high. However, this is not persuasive. If indeed the award is so high and so out of kilter that it satisfied the test that it is so unreasonable that no reasonable jury could have made it, it is hard to see why it should be feared that the court which had made that determination would nevertheless allow itself to be subliminally influenced by that award, and would not be astute to avoid any such influence. In any event, the court has a jurisdiction and cannot avoid exercising it if it is required in a case.

29 It seems therefore that the defendant’s opposition to the Court substituting its award in this case is based less on principle and reason, and more on a pragmatic assessment of the defendant’s chances under each route. If the finding of liability is upheld (as has been in this case), then the assessment of damages must take account of and be faithful to that finding. If however there is a retrial, and in particular a retrial at which all issues are open, then there is a risk which neither party can exclude, that the plaintiff may not succeed, or if he succeeds he will not receive large damages. On this calculation it might be thought to be likely, although that can never be known with accuracy, that the outcome of a retrial would be better for the defendant than a substitute award which accepted the finding on liability. The fact that the plaintiff asks the Court to determine the matter and substitute its own award reflects perhaps a similar assessment of the likely range of potential outcomes, as well no doubt as a concern that the imbalance in resources may mean that the plaintiff may find it more difficult than the defendant to face into a second trial and what would be a fourth court hearing. The defendant may therefore calculate that even if the finding on liability on this case was in the permissible range of findings open to a jury, it nevertheless represents something of an outlier and might not be replicated before another jury. That may or may not be correct, and may be a pragmatic reason for the defendant taking the position it is, but I fail to see why it could be a reason for this Court to accede to the course the defendant suggests.

30 However, the rather surprising volte face on the part of the defendant illustrates perhaps the fact that the substitution of an award by this Court (or the Court of Appeal) for the damages assessed by the jury is in reality a more difficult and complex task than some of the public commentary has been willing to appreciate. It has been said, correctly, that the Supreme Court has been very reluctant to exercise this power. Indeed, it was said in Barrett v. Independent Newspapers [1986] I.R. 13 at p.19 that:

      “[W]hilst 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.”
This vivid phrase gives a strong sense of the height of the bar but was not, I think, intended to suggest that the award of damages by a jury in a defamation case had some mystical quality putting it beyond review. Rather, I consider that however described, the appellate reluctance to review a jury award and substitute its own award is based on pragmatic and persuasive considerations rooted in the decision made in this and other jurisdictions to have the questions of meaning, defamation, and assessment of damages determined by a representative and randomly selected sample of the population, under the guidance of an experienced judge.

31 A jury’s decision is necessarily opaque. The decision is delivered, and not the reasons for it. It cannot be interrogated for justifications, and may indeed be arrived at by a process of compromise. It has however two particular strengths: first, it represents the considered decision of members of the public randomly selected and assembled solely for the purpose of determining a single case. Second, the fact that a single decision is rendered by a jury consisting in principle of twelve persons means that it has the benefit of the phenomenon identified as collective wisdom: the fact that if an individual decision or assessment is made by a large number of disinterested people, and whether the average or the mean is taken, the process limits the possibility for extreme and idiosyncratic decisions, and leads to a broad consensus which carries greater weight, and indeed, the likelihood of being correct, than the decision of a single individual. These strengths have a particular connection to actions for defamation. The principal test, whether a publication will lower a person in the minds of right-thinking people, calls particularly for determination by members of the community, and preferably by a randomly assembled group of such individuals. The reputation to which an individual is entitled, and whether any publication is defamatory, and the impact of any such defamation on an individual within the community, perhaps particularly when contained in mass circulation in newspapers or media organs with wide popular access, are all matters which members of the public, who after all are the target audience of such publications, are well placed to gauge. Furthermore, the purchasing power of money and the value in real terms to the life and lifestyle of an individual is something which a jury composed of persons drawn from different social groups, and having different life experiences, can collectively gauge and judge. It is sometimes suggested that it is simply impossible for an appellate court to substitute its own award for that of a jury because the award is somehow purely within the province of the jury. But if an appellate court can set aside the award by a jury because it is outside the range of any reasonable award, it must follow that a court can identify the range of permissible awards, and I can see no objection to a court then making its own best assessment within that range.

32 These features do suggest, however, that any jury award in a defamation case should be approached cautiously, and a significantly wide margin should be afforded to such an award in every case. But there is a further difficulty which does not arise in, for example, a personal injury case. There, the question of liability is often quite distinct from the question of the extent of the injury. Damages can often be assessed quite separately and without reference to the circumstances giving rise to the injury. Furthermore, the question of the extent of an injury may be a matter upon which there is disagreement, but it is also normally the subject of expert evidence on either side, thus reducing the task of the fact finder to a consideration of the probabilities on either side. However, in a defamation case the question of whether the words are defamatory, and if so the damage done to the specific reputation of the individual, are bound up together. Here for example the quantum of damages depends not simply on some view as the scale of damages to be awarded in particular types of cases, but on the extent to which the elements of the publications found to be untrue, or at least not established as true, damaged the reputation of the plaintiff. That evidence is influenced by the impression witnesses make to a greater extent than perhaps in other cases. For these reasons and more, I have considerable sympathy with the view expressed by my colleagues in dissent that the Court cannot or should not attempt the task of substituting its award but rather should submit this matter for a further trial.

33 However, the issue for this Court is not simply whether or not it should substitute its own award for that of the jury which it has found to be so unreasonable that it cannot be upheld. If it does not substitute its own award, it must remit the matter for a re-trial. Accordingly, the choice here is between alternatives, neither of which is attractive.

34 As already observed, a re-trial is not like the re-running of a science experiment with one variable element excluded. In such a situation all the elements present in the previous experiment can be introduced in precisely the same way, and none of them have, by definition any memory of the previous experiment. The same cannot be said of litigation. Some witnesses may not be available, others may become available, and those who were present in both cases will not be able to, and in most re-trials will not be permitted to, forget what occurred and was said in the previous trial. The events the subject matter of these proceedings occurred nearly twenty years ago. Inevitably the memories of all the witnesses will be poorer. There are also other problems which have no easy answer. What if anything is a jury to be told about the previous trial? This is a case which has attracted a high degree of publicity and commentary, and reference to a previous trial might well trigger memories of the award in this case, or prompt research on the part of the jury. What is to be said about matters occurring after the first trial? If there are matters which cast serious doubt on the credibility of witnesses, is that to be ignored? On the other hand, if there are matters which reflected very badly on the reputation of the plaintiff (and I emphasise there is no such suggestion in this case) could those matters be deployed? If not, is the jury to be asked to engage in an artificial exercise by reference only to those matters which were available at the first trial and remain available now? Put at its lowest, no one can suggest that a trial of twenty years remove from the events described and the publication complained of is a very satisfactory option. Furthermore, there is no reason to believe that any such trial would be an end of matters. Particularly if a view as strict as that taken by my colleagues in dissent in this case, and the Court of Appeal in this case, of the construction of the issue paper in this case, for example, it is certainly possible that the disappointed party in any retrial would exercise their right of appeal. This is particularly so because by then there would be a very significant investment in costs in the balance.

35 If this was a case in which the appeal was being heard very shortly after a trial, then the difficulties with the substitution of an award might indeed lead me to take the course of directing a re-trial. However, I cannot ignore the amount of time that has elapsed in this case, and I have come to the conclusion that the prospect of a re-trial in this case, with the possibility of further appeals, is a less satisfactory and less just solution, than for this Court to proceed and to seek to determine this litigation once and for all by substituting its own award for the award of the jury which has been set aside. The administration of justice contemplates a decision at trial level and if necessary review at appellate level. I do not see that the prospect of further trial hearings and possible appeals is a fair, better, or more just outcome than if this court assesses damages now.

36 The recent decision of the ECtHR in Independent Newspaper v. Ireland ((App. No. 28199/15), concerning the Leech case (Leech v. Independent Newspaper [2014] IESC 79) was referred to in the submissions on this matter. It was observed in passing that the jury direction given in that case was almost identical to that given in this case. However, more attention was focussed on the ECtHR’s acknowledgement that Ireland’s decision, in common with many other countries it should be said, to have jury determination of defamation cases was “an entirely legitimate decision” to involve citizens in the administration of justice, which moreover had been considered and affirmed relatively recently after a careful public debate. The ECtHR considered, however, that in substituting its award for damages the Supreme Court decision did not “disclose relevant and sufficient reasons supporting the conclusion finally reached”. Counsel for the newspaper in this case suggested that in substance this issue arose from the fact that while the libel in that case was not the gravest and most serious by comparison with the libel in De Rossa v. Independent Newspaper [1999] 4 IR 432, nevertheless the Supreme Court had substituted an award which was a significant multiple of the amount awarded in that case. If this indeed was the fundamental issue, then I would suggest as part of the respectful and necessary dialogue between courts, and in particular those coming from different legal systems and forms of legal reasoning, that such an analysis is somewhat superficial. A sympathetic reading of the judgment in the Leech case would, I think, reveal fairly clearly the factors which must have underpinned the original award of damages by the jury, and the Supreme Court’s decision to substitute a reduced but nevertheless very substantial award of damages.

37 The libel in the Leech case was one committed after a sustained and almost unprecedented high profile campaign of repeated publications in a newspaper directed against the plaintiff in that case. The underlying allegation that the plaintiff, a married woman, had an adulterous affair with a prominent politician, and moreover that she owed her employment and substantial income to improper favouritism by the same politician was undoubtedly serious. It attacked the individual’s reputation at a most personal and intimate level, and necessarily had significant impact on her personal and family life which lies at the core of a person’s identity, sense of security, and indeed sense of self-worth. But the libel at the same time attacked her professional reputation and source of employment. In this case, her business involved representation of individuals and businesses, and was thus closely connected to and could not be detached from her own reputation. The business which she was in the course of launching could have been expected normally to benefit from the fact that she had been trusted to carry out important public relations functions for a busy Minister. After the libel, however, that relationship became not an advantage, but rather a significant, and probably crippling handicap. It seems reasonable indeed, if not inevitable, that the jury considered that the repeated and persistent defamatory campaign was a serious libel deeply wounding to the plaintiff and her family on a personal level, and extremely damaging to her personal reputation, but also destructive of her prospects of business success in her chosen field. The damages therefore included substantial damages for serious injury to personal representation, and also the loss of her prospects of a profitable business. It is of course very difficult to assess the loss of future profits of a business that has not been able to commence trade and has no track record of business, and it is recognised that in such cases the Court in assessing such damages, must make the best estimate it can. It seems clear that the Supreme Court agreed that these were the components of the damages of award, but considered that the general award should be reduced. It is of course important that any award of damages substituted by this Court or the Court of Appeal should be adequately and clearly reasoned, but it must also be recognised that there is an inherent limit to the amount of explanation which can be provided. I propose to try to set out the considerations which have led me to agree with the award which represents the collective view of the majority of the Court in this case.

38 First, the Irish Constitution imposes upon the State a specific obligation to defend and vindicate the good name of the citizen. This recognises something long valued in Irish society. The surviving evidence of the comprehensive system of early Irish Brehon law appears to have contained very detailed provisions directed towards the protection of reputation from unjust attack. Thus, the separate provisions were made for the wrongs of mocking a person’s appearance, applying a derisive nickname that sticks, composing a satire and circulating it, taunting of an individual, wrongful accusations of theft, and the circulation in public of stories causing shame to an individual or mocking the disabilities of a person with epilepsy, leprosy, or other afflictions, were all considered matters requiring payment of an honour price to the victim.

39 The protection of reputation from wrongful attack is not a merely historical idiosyncrasy of this country, rather it is something which most civilised systems of justice seeks to achieve. It has been said of the European Convention of Human Rights, but might also be said of any developed system protective of the individual, that the Convention was intended to ensure the development without outside interference of the personality of each individual in his or her relations with other human beings. A central part of the development of that human personality is a reputation earned over a lifetime, perhaps locally among a community, and also in a person’s chosen occupation. To become the subject of an unjust attack on reputation, which is widely circulated, perhaps nationally, can be seriously wounding and cause real damage to a person’s sense of themselves and their self-worth. The awareness that many others are now talking about them, and think less of them, can be crippling to persons of normal sensitivity, not accustomed to life in the glare of national publicity.

40 The statement made and alleged to be defamatory is an expression of speech itself in principle protected by the Constitution. However, when a court comes to assess damages for defamation, it does so only after it has been determined that the statement is both defamatory and wrongful, and that none of the defences protective of a wide range of free speech apply. Therefore, if it has been determined that the words are not true in substance in themselves, or sufficiently true under s. 22 of the 1961 Act, or uttered on the occasion of qualified privilege, or constitute comment on matters of public interest, or are made in circumstances giving rise to the so called “Reynolds” defence.

41 The assessment of damages is made only after a contested trial where unless, and unusually, liability is admitted, the defendant has sought to maintain that the publication was lawful and appropriate. Inevitably such trials attract further and considerable publicity which often gives wider currency to the allegations. In this case for example, the proceedings necessarily linked the plaintiff by name to the publication and in doing so well beyond the local community. The decision of a jury in favour of a plaintiff is of course a vindication, but it will never get the prominence or coverage of the original defamation, nor necessarily reach the persons who were exposed to the original article or publication. It is also necessarily reported to the public through media, normally, though not always sympathetic, to the media defendant. The award of damages is itself therefore a significant form of vindication for a wrong, since a substantial award demonstrates to the public in a very clear way, the view of a jury, being representative members of the public, of the original publication.

42 Finally, in a digital age which means that the public now rarely resort to newspapers as a source of news, much coverage becomes commentary which must fight in a crowded market place for attention from a public with an ever decreasing attention span. There is an inevitable tendency towards lurid headlines and extravagant allegations designed to provoke outrage and, therefore, attract attention. The law of libel is therefore a limited counter balance and protection for individual reputation from the commercial pressures which do not themselves otherwise impose a substantial restraint on defamatory publication. It is a protection not just for the person who commences proceedings, but for the public generally who do not wish to be the subject of defamatory publications.

43 For all these reasons, it is to be expected that where serious allegations are made and repeated, resulting in a contested action, that if a jury finds the publication to be libellous, that any damages awarded will often be substantial. It is also important to put that system of award of damages in the broader context of the laws which balance the protection of privacy and reputation with the requirements of freedom of speech. There is no single structure by which this balance is to be achieved.

44 Turning to this case, I agree that broad comparisons can be made with personal injuries awards and awards in other defamation cases. These can provide some sense check for the assessment of damages because they represent a system which attempts to put monetary values on injuries whether physical, psychological, or reputation. However, they cannot be treated as precise guidance. The assessment of damages for personal injuries has itself long been recognised as a business of equating incommensurables, or, as O’Higgins C.J. put it in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, “ assaying the impossible”. There is no market in personal injuries to which a court can refer for evidence and guidance. No one offers to sell, or would be permitted to buy, a broken leg. However, unless the cost of accidents causing injuries are imposed upon the person causing the accident, the inevitable outcome will be that the incentive towards careful conduct is reduced, and the number of accidents will increase. To some extent, a similar calculation arises here.

45 However, the assessment of damages for personal injuries is a more sophisticated and precise exercise than the assessment of damages for defamation. First, there is a finite range of injuries to the person which an individual can suffer and they are broadly comparable to each other and allowance can be made for a number of possible variables in age, gender, employment and activity levels. Perhaps even more importantly, there is a very large data set available. Courts and lawyers have experience of very large numbers of cases which itself provides a quite detailed grid against which any individual case can be mapped without ever necessarily considering the underlying and quite complex task of assessing from scratch the amount of damages that should be assessed for a particular injury. The maximum damages for pain and suffering which can be awarded does provide some guidance also. However, again in this respect care must be exercised. The so called “cap” on general damages for pain and suffering is normally assessed in conjunction with a substantial claim for special damages covering every possible cost which has been incurred or might be anticipated could be incurred by the injured party. The award of general damages, even at the maximum, is in such cases normally only a fraction of the overall award. It is sometimes said that part of the rationale for limiting the maximum amount for pain and suffering is partly because of the existence of comprehensive and extensive awards of special damages. It is clear, therefore, that no easy or direct comparison can be made in this regard with defamation cases. Nevertheless, as an indicator of courts’ approach to the business of ascribing a monetary value to the damage and injuries suffered by a plaintiff, the awards in personal injuries do provide some guidance. On this basis, plainly, the figure of €900,000 is comparatively speaking extremely high.

46 There is no market for defamatory publications and no reasonable proxy to provide a separate basis for assessing an award in a defamation case. Some guidance can be obtained from other substantial awards in defamation cases, particularly those which have been upheld on appeal, and to the extent where the Court of Appeal or Supreme Court substitutes its own award, then these may also provide some guidance. However, a note of caution is appropriate here too. While the monetary amounts awarded are readily comparable and can be placed on a scale, it is a much more difficult task to compare defamations than it is to compare personal injuries. A clean break may be less serious and may heal more quickly than a comminuted fracture. A fracture which enters an articular joint and gives to a risk or probability of future arthritis is more serious than one which does not. An injury to a young and active person may be different to the same injury sustained by someone older with a more sedentary lifestyle. These relativities should be reflected in awards. It is however more difficult to measure defamation in cases on any set scale. Taking simply by way of example the De Rossa and Leech cases and this case, each one has very different features. The distinctive aspect of the De Rossa case, was not just the serious allegations and the vigour with which they were pursued, but the longstanding reputation of the plaintiff, the fact that he was a very well-known figure, and the fact that his political career was based upon his reputation. He had achieved high office, and the publication threatened not just his public reputation, but his very career. On the other hand, the plaintiff in the Leech case was not widely known to the public at all, at least before the circumstances which gave rise to the series of publications. But on the other side of the balance, there were features of that case not present in De Rossa. As already discussed, the defamation in the Leech case was part of a repeated campaign which went to considerable lengths, both in the language used and photographs employed, to suggest an improper relationship on her part. Furthermore, and as already discussed, the damage done to her business was not only a significant factor in the case, but also one which made the assessment of damages more difficult. The issue in the present case is not readily comparable to either of those cases, although of course the award would suggest some comparison. There is no doubt that to allege that someone is a drug dealer, let alone a major drug dealer, and not establish the truth of that allegation, is a very serious defamation particularly when carried in the most prominent position in the largest circulating newspaper in the State. However, the plaintiff here was not identified by name in the article, or identifiable to the casual reader, and his position was not comparable to that of the plaintiff in the Leech case. Furthermore, the most distinctive feature of this case was the fact that the jury found, and indeed it was admitted, that the plaintiff was not a person of good reputation. It is, I think, an artificial exercise to imagine what a jury might have awarded had the plaintiff been of unblemished character and good reputation. If perhaps there was a mix up of identities and the newspaper article had named an entirely innocent person who had not been arrested or questioned or involved at any stage in the events described in the article, and assuming that that defendant did not acknowledge the mistake, but rather contested the case and insisted upon the truth of the article, I do not believe even then that award of €900,000 could be justified, in the absence at least of the substantial case being made of additional loss of business and profits. That however did not occur in this case. It is possible, from the manner in which the case proceeded, and the emphasis laid by the plaintiff’s legal team on certain matters, that the jury was influenced because of the poor view they may have taken of the degree of co-operation between the Gardaí and the newspaper, both at the time of the plaintiff’s detention and the publication of the story, and later at the trial. But disapproval of Garda behaviour could not be a basis for the award of very substantial damages against the newspaper. If this was not a factor, and the jury simply awarded this amount, as its assessment of damages, then, in my view, it was excessive and went beyond the amount any reasonable jury could award even if the plaintiff was a person of high reputation.

47 However, the exercise the jury had to carry out, and which this Court now has to review, was much more difficult. The plaintiff was a person who had a poor reputation. He, and in particular, his lawyers did not seriously contest that he was a tax evader and had a criminal record. Furthermore, he had entered into a settlement with the Criminal Assets Bureau. That Bureau is well known to be involved in the pursuit of assets which can be identified as the proceeds of crime. In doing so, it can additionally exercise revenue powers and powers under the social welfare code. In this case the settlement entered into was in relation to income tax, but it was part of the defendant’s case that that income tax was due on monies themselves the proceeds of crime. Nevertheless, and taking these matters into account, a jury was entitled to conclude that it was still defamatory to say of such person that they were a major drug dealer. I approach the assessment of damages on this basis. A court should in any event be slow to find that because a person has a bad reputation they have no reputation so that they become in effect an outlaw about whom anything can be said with impunity. However, the assessment of damages meant an assessment not simply of the damage done by a wrong allegation of drug dealing, but rather the extent to which a bad reputation had been made materially worse by the publication. Difficult as this is to assess, particularly at this remove, the difficulty is compounded by the fact that the jury was, and therefore this Court is, entitled to take into account the evidence led on the failed justification plea. This is an area where there is perhaps particularly wide scope for differing approaches. It is possible that the jury took the view that this evidence was irrelevant. For my part, the evidence is a significant additional feature to be added to the admitted fact of criminal convictions, tax evasions, and settlement with the Criminal Assets Bureau.

48 During the course of argument counsel for the defendant was invited to offer an assessment of an appropriate award of damages. He suggested an award of €75,000. It has to be assumed that this is itself part of a range of possible awards that could be justified. The figure does provide considerable support for the assessment to which my colleagues have come. For my part, I would perhaps have given some consideration to a lower figure, but I acknowledge that this reflects a view which I have formed, which is based on the transcripts of the evidence, and therefore without the benefit of hearing and seeing all the witnesses. It is thus an assessment which can benefit particularly from the form of collective judgment that results from the synthesis of the individual views of a jury, and in this case a collegiate court. In this case, I am therefore prepared to concur in what would in any event be the majority view of the appropriate award in this case. Accordingly I agree with the judgments of the Chief Justice and Dunne J. In deference to the fact that the parties have settled the proceedings between them I consider that it would be unfair to be more specific about the figure.

Judgment of Ms. Justice Dunne delivered the 27th day of July 2017

I have read the judgments of Denham C.J. and O'Donnell J. and I agree with them. I want to make some brief observations of my own.

The plaintiff in this case was the subject of an article which appeared on the front page and on inside pages of the edition of the Sunday World newspaper published on 5th September, 1999. The headline over the front page story which was the main story that appeared was "Traveller is new drug king". Underneath a sub headline said "[t]he shark is arrested as huge haul of hash and ecstasy is found". The story was continued inside on pages 2 and 3 in a similar vein. While the plaintiff was not mentioned by name in the article complained of, he was readily identifiable from the article and accompanying photographs, albeit that they were pixillated. The plaintiff brought proceedings for defamation arising out of the article and claimed inter alia that it meant that he was a criminal, that he was a drug dealer, that he was a tax evader and that he was a loan shark. A defence was duly filed pleading inter alia that the words complained of were true in substance and in fact. Following the trial of the action in February of 2008, the jury in response to the questions on the issue paper reached the conclusion that the plaintiff was not a drug dealer and was not a loan shark. They did however accept that the plaintiff was a tax evader and that the plaintiff was a criminal. The jury could hardly have concluded otherwise given that this was accepted by the plaintiff from the commencement of the trial before the jury. In circumstances which have already been described in earlier judgments of this Court and which do not need to be further addressed in this judgment, the jury proceeded to assess damages in favour of the plaintiff in the sum of €900,000.

The question arises as to whether that sum by way of damages is excessive as contended by the defendant and should be set aside on the basis that it is so excessive or is it an appropriate measure of damages having regard to the seriousness of the libel as contended by the plaintiff.

Amount of award
In the case of Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214 (“the Leech case”), in giving the majority judgment of this Court in that case, I considered the approach to be taken by an appellate court in considering the award of damages by a jury in the following terms (at para. 123):

      "Counsel on behalf of Ms. Leech took issue with [the newspaper's] submission and argued that in the light of the decision of the Supreme Court in de Rossa v. Independent Newspapers plc. [1999] 4 IR 432 and having regard to the decision of the European Court of Human Rights in Independent News and Media v. Ireland (App. No. 55120/00), the position of the Supreme Court and indeed the European Court of Human Rights is that the Irish approach to scrutiny of the award of damages by a jury in cases such as this is compliant with the Irish Constitution and the Convention. It was further submitted that the decision of the European Court of Human Rights in Independent News and Media v. Ireland did not alter or reconfigure Irish law in respect of awards of damages in defamation actions. I agree with that submission. As is clear from the authorities referred to above, the position in Irish law is that an appellate court will be slow to interfere with the verdict of a jury on the assessment of damages but nevertheless awards by juries are subject to scrutiny and if an award is so disproportionate in the circumstances of the case having regard to the respective rights of freedom of expression on the one hand and on the other hand the requirement under the Constitution to protect the good name of every citizen, that no reasonable jury would have made such an award then the award will be set aside on appeal."
I also made the following observation in the Leech case (at para.119 et seq) :

Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.

Thus it is clear that while the assessment by a jury of damages for defamation is not sacrosanct, it does carry considerable weight such that appellate courts have been slow to interfere with the assessments by a jury and an appellate court should only set aside such an award if the appellate court is satisfied that the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made the award in all the circumstances of the case."

I also referred in the Leech case to a passage from the judgment of Hamilton C.J. in de Rossa v. Independent Newspapers plc. [1999] 4 IR 432 (“de Rossa”) on the subject of damages and it would be useful to set out the quotation (at para 125):

      "The judgment of Hamilton C.J. in [de Rossa]is a useful starting point in considering this question. Both parties on this appeal have cited a passage from his judgment in which Hamilton C. J. quoted with approval a passage on this topic from the decision of the Court of Appeal in John v. MGN Limited [1997] QB 586, at page 463:

        'The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John v. MGN Ltd. [1997] QB 586 at p. 607 of the report where it is stated as follows:-
            ‘The successful plaintiff in a defamation action is entitled to recover,

            as general compensatory damages, such sum as will compensate

            him for the wrong he has suffered. That sum must compensate

            him for the damage to his reputation, vindicate his good name

            and take account of the distress, hurt and humiliation which

            the defamatory publication has caused. In assessing the

            appropriate damages for injury to reputation, the most important

            factor is the gravity of the libel; the more closely it touches the

            plaintiff’s personal integrity, professional reputation, honour,

            courage, loyalty and the core attributes of his personality, the

            more serious it is likely to be. The extent of publication is also

            very relevant: a libel published to millions has a greater potential

            to cause damage than a libel published to a handful of people. A

            successful plaintiff may properly look to an award of damages to

            vindicate his reputation; but the significance of this is much

            greater in a case where the defendant asserts the truth of the

            libel and refuses any retraction or apology than in a case where

            the defendant acknowledges the falsity of what was published

            and publicly expresses regret that the libellous publication took

            place. It is well established that compensatory damages may and

            should compensate for additional injury caused to the plaintiff’s

            feelings by the defendant’s conduct of the action as when he

            persists in an unfounded assertion that the publication was true,

            or refuses to apologise, or cross-examines the plaintiff in a

            wounding or insulting way’.”

Bearing in mind the observations in John, how then does one assess the award of damages by the jury in this case? The jury in this case was satisfied that the defendant had not proved that the plaintiff was a drug dealer or a loan shark. It had not been contested on behalf of the plaintiff that the plaintiff was a tax evader and a criminal. The details of the nature of the defamation involved in this case were summarised in the judgment of Charleton J. delivered herein on the 28th June, 2017 and it is unnecessary to refer further to those here. It goes without saying that an allegation which proves to be unfounded to the effect that an individual was criminally involved in the importation of a large quantity of drugs is a serious defamation. The evidence of the plaintiff before the jury included that of the plaintiff, his daughter who described how upset he had been as a result of the publication and two character witnesses, a publican and a lecturer. From the defence side a number of witnesses were also called, mainly members of the Gardaí. In addition, in circumstances where the plaintiff had entered into an agreement with the Criminal Assets Bureau, a witness from the Criminal Assets Bureau gave evidence. That evidence concerned proceedings brought by the Criminal Assets Bureau to recover non-payment of income tax and capital gains tax and to recover social welfare payments which had been obtained by the plaintiff and to which he was not entitled. From the information and evidence given by the Criminal Assets Bureau and a bank manager in relation to monies going through the accounts of the plaintiff, it appears that a settlement was reached between the Criminal Assets Bureau and the plaintiff on the basis that a sum of €100,000 together with a sum of €11,000 in respect of social welfare payments was due from the plaintiff to the Criminal Assets Bureau.

There was no question but that the plaintiff had a number of criminal convictions but there was some issue as to the extent of those convictions. In the course of opening the case counsel on behalf of the plaintiff described him as having had a tough upbringing and a tough life. It was then said:

      "Along the way Mr. McDonagh got into trouble, plenty of it. There will be evidence - there is no dispute about this - of criminal convictions that Mr. McDonagh had but I want to tell you just a little bit about those convictions. They stem from 1981 through until 1984. They come from a time when the plaintiff was 19 to the age of about 22 or 23. They involved road traffic offences, driving with no insurance, but also one or two convictions for larceny. . . ."
As was said in the case of John, a plaintiff comes to court seeking damages to "compensate him for the damage to his reputation; to vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused". The plaintiff is an individual who came to court in circumstances where reputation was very much put in issue and the plaintiff was someone who did not come to court with a blameless reputation. He came to court as someone who had a criminal record albeit that the offences of which he was convicted pre-dated the publication concerned by some considerable period of time. He was also a person who had been the subject of a settlement with the Criminal Assets Bureau in 2004. The context of that settlement included non-payment of income tax, non-payment of capital gains tax and social welfare fraud resulting in an overpayment of social welfare to the plaintiff in the sum of approximately €11,000. A person of impeccable character and reputation who has been defamed by being accused of being a drug dealer is clearly entitled to more by way of damages than a person of sullied character and reputation. Undoubtedly this was a serious libel. It was a libel which was widely published. In the Leech case referred to previously I spoke of the impact of defamation on the person bringing proceedings. At page 16 of the judgment I noted as follows (at para. 147):
      "Defamation can impact on an individual in a number of ways. The defamation can impugn someone’s moral character. It can also impugn a person’s business, trade or professional standing. It can impact on other aspects of their status as a person, calling into question personal qualities such as honesty, loyalty, honour, thus impugning an individual’s personal integrity."
In the present case, as I have already pointed out, the plaintiff is not someone who came to court with a blameless reputation. His moral character is less than perfect. He has a number of convictions. He is by his own admission a tax cheat. Nevertheless, he is not somebody who has engaged in the sort of criminality that ordinary decent people would rightly abhor, namely drug dealing and loan sharking.

How does this case compare with other libel awards? It is one of the highest awards ever made by a jury. One must then consider if it is one of the most serious defamations to come before the Courts? Are there other factors at play that could explain the level of the award? This was a case of compensatory damages only. The question of aggravated damages did not go to the jury. In the Leech case to which I have referred, there was a sustained campaign against the plaintiff which went to the heart of the moral and business character of Ms. Leech. She had just launched a new business immediately prior to the publications at issue in that case and as I said in the course of the judgment in that case, the business simply never got off the ground. Clearly, the defamation in that case had a huge impact not just on every aspect of her personal/family life but also on her professional/business life. It is always going to be difficult to make a direct comparison between different defamations because of the variety of factors that may be at play, such as the nature of the defamatory allegation, the character and reputation of the person defamed, the extent of the publication and the impact on the person concerned, to name but a few, but in my view, taking the relevant factors into account, I cannot place the defamation in this case at anything close to the level of seriousness at issue in Leech. Even if the plaintiff in these proceedings was a person of impeccable character and reputation, which cannot be said, one would have to say that the sum awarded in this case was excessive. When one factors in all the particular circumstances of this case, I have no hesitation in saying that the award of the jury was disproportionate and should be set aside. The award is far larger than is necessary to put right the wrong done to the plaintiff's reputation.

Remittal or assessment
In circumstances where I am of the view that the award in this case should be set aside, the question then arises as to whether this matter should now be remitted to the High Court for an assessment of damages before a jury or whether this Court should now proceed to assess the appropriate damages to be awarded. The position of the plaintiff is strongly in favour of the assessment of the appropriate damages being dealt with by this Court. The defendant favours the remittal of this issue to the High Court.

An individual who seeks to vindicate their good name by bringing an action for damages for defamation has two options. The first of these is to bring proceedings in the Circuit Court claiming damages for defamation. The Circuit Court hearing will involve a hearing by a judge sitting alone and the damages available in the Circuit Court are less than those available to a plaintiff seeking damages in the High Court. The Circuit Court is a suitable venue for dealing with action in defamation where the defamation in issue is not so serious as to result in an award of damages in excess of the Circuit Court jurisdiction. In cases where the defamation is more serious, the appropriate venue is the High Court. The courts established in this State in the earliest days of Saorstát Éireann provided the right to trial by jury. (See s. 94 of the Courts of Justice Act 1924). That provision applied to the right to a jury in civil cases in the High Court and the Circuit Court alike. Civil juries were abolished for Circuit Court actions by s. 6 of the Courts Act 1971. Subsequently, s. 1 of the Courts Act 1988 provided for the abolition of juries in the majority of actions in the High Court. However, the Oireachtas expressly retained trial by jury for a limited number of proceedings including defamation actions. Thus the Oireachtas recognized the importance of the role of a jury in the task of vindicating a citizen's right to their good name. An important part of the task for the jury is the assessment of the damages due to an individual by reason of the injury caused to their reputation. Given the standard text book definition of defamation is that the words complained of tend to "lower the plaintiff in the estimation of right thinking members of society generally" (see Gatley on Libel and Slander, 10th Ed. (Sweet & Maxwell, 2007) at para. 1.5), it is appropriate that the Oireachtas has retained the use of a jury of right thinking members of society for the purpose of assessing the damages due to a plaintiff in defamation proceedings. Thus, at a philosophical level, one can well understand the desirability of a person whose reputation has been damaged by a defamatory statement turning to a jury of their peers, representing as they do the values and norms of the society in which they live, to measure the damages to which that plaintiff may be entitled. For that reason, it seems to me that it will only be in exceptional cases that an appellate court will attempt to undertake the difficult task of assessing damages in a defamation action such as this.

In the course of their legal submissions, it was pointed out by the plaintiff that the Supreme Court has jurisdiction to enter such judgment as the Court considers proper. Such provision was made in s. 96 of the Courts of Justice Act 1924 and was effectively re-enacted by s. 48 of the Courts (Supplemental Provisions) Act 1961. See also the decision in Holohan v. Donohoe [1986] I.R. 45.

While there is no doubt as to the jurisdiction of this Court to substitute its own award for that of a jury, it seems to me that in assessing damages in a defamation action, a jury is generally best placed to assess damages. Damage to reputation, as I have already explained, is best assessed from the point of view of the community and a jury is quintessentially in the best position to perform that task. Nevertheless there are cases where that may not be the appropriate course to take and I now wish to consider whether this is one of those cases.

The plaintiff, having expressed the view that the damages in this case were appropriate to the defamation concerned, nevertheless was strongly of the view that in the event that this Court found otherwise it would be preferable for this Court to assess damages rather than remit the matter to the High Court for a further trial with a jury. There are a number of reasons for that approach. In the event that the matter was to be sent back it was pointed out that there would have to be a hearing at which evidence would be given afresh in relation to the reputation of the plaintiff. That would inevitably involve hearing from a variety of witnesses in relation to the reputation of the plaintiff. The article complained of was published in 1999. Proceedings issued in 2000. The defence was delivered on the 2nd April, 2002 and the trial took place in February 2008. Following the verdict of the jury, the matter was then appealed by the defendant and ultimately came before the Court of Appeal. On 19th October, 2015, the Court of Appeal allowed the defendant's appeal and remitted the matter back to the High Court for further trial ([2015) IECA 225). This led to the plaintiff seeking, and being granted, leave to appeal to this Court. There has been a considerable lapse of time since the publication of the article in question. The delay is, in my view, a factor to consider on this issue. There would be further delay if the matter was to be remitted to the High Court for the assessment of damages. It is not a case of attributing blame to the plaintiff and the defendant in relation to delay. Some of the delay is attributable to delays within the court system.

What is not at issue in truth is the cause of the delay but rather the fact of delay. I have no doubt whatsoever that the circumstances of this case are such that given the lapse of time between the publication and the time which would necessarily elapse before a re-trial, it would not be in the interests of either of the parties to remit the assessment of damages to the High Court as this would lead to further expense and delay. Any re-trial could not be done without hearing from the witnesses afresh and that in itself could prove difficult given the lapse of time. Witnesses will inevitably have less ability to recall the events of 18 and more years ago and thus the quality of their evidence will be affected. A trial so far removed from the events of this case would be far from ideal. Following a retrial on the assessment of damages, it is possible that a further appeal could be taken by either of the parties. For all these reasons and having regard to the costs that would be necessarily incurred in a further re-trial of the issue of damages, it seems to me that this is one of those rare cases in which it would be appropriate for this Court to assess damages rather than remit the matter to the High Court. This case is the exception rather than the rule to the general proposition that if the jury verdict is set aside as being disproportionately high, the matter should be remitted to the High Court for a fresh trial before a judge and jury. In this case, however, it is undoubtedly in the interests of justice for the parties at this stage to bring an end to this lengthy litigation.

Assessment of damages
For the purpose of assessing damages, the Court has canvassed with counsel for both parties as to where this case should lie on the scale of defamation awards. Not surprisingly, counsel for the plaintiff maintained that given the serious nature of the defamation involved it was one which should attract damages at the level assessed by the jury. For reasons previously explained, I reject that submission. From the point of view of the defendant, the view was expressed by counsel that an appropriate starting position would be at the figure of €75,000.

I have considered the figures mentioned by counsel on both sides. I have considered the nature of the libel, the impact on the plaintiff, the nature of the plaintiff's reputation and the extent of the publication. I have considered the nature of a citizen's right to vindicate their good name and the right of the defendant's freedom of expression. Bearing in mind these considerations it seems to me that the appropriate sum to assess by way of damages taking into account all of the factors I have mentioned would be a sum which is very substantially reduced compared to the sum awarded by the jury. In circumstances where the parties announced to this Court that agreement had been reached by the parties as to the appropriate sum for damages together with costs and in view of the application by the parties not to publish the sum assessed by the Court as the appropriate figure, I have agreed with the majority of the Court not to refer in this judgment to the amount so assessed.

JUDGMENT (No. 2) of Mr. Justice William M. McKechnie delivered on the 27th day of July, 2017

1. Immediately prior to the intended delivery of this judgment, the Court was informed that all matters had been compromised between the parties and that a final settlement of this litigation had been reached. As part of this compromise it was agreed between the parties that the Court would be asked not to deliver judgment, and so an application to that effect was made. However, because the judgments which were about to be delivered dealt with matters which are of general public importance, the Court decided to proceed as originally planned, subject only to an agreement by those who intended to nominate a specific damages figure, not to do so.

2. As drafted, the first paragraph of my judgment read:

        “This case is in a mess: I do not propose adding any contribution to that. Though not without some unfortunate consequences, I believe the only course open is to order a re-trial on all issues. I would hope that such can be done more expeditiously than the timeline of the original case, and I cannot see any reason why that would not be so.”
Whilst I am relieved that matters have been resolved, the fact that it took almost 18 years to do so and was arrived at only minutes before judgment was due to be delivered is added testament to the view which I have just expressed.

3. In my first judgment in this case (McDonagh v Sunday Newspapers Limited [2017] IESC 46, referred to in this judgment as “McDonagh No. 1”), I have set out details of the evidential landscape as painted before the High Court, the questions which were answered by the jury and those which were not, the resulting Order of the trial judge, de Valera J., the decision of the Court of Appeal, the issues upon which leave was given to further appeal to this Court and the important issue upon which it was refused (para. 6, infra). Save for some necessary background context, I do not therefore propose to repeat any of those matters in this judgment.

4. To briefly recap:

    The High Court
        (i) Subject to a justification plea, it was accepted that the newspaper article in question, was, as to meaning, defamatory of the plaintiff by reference to the allegations as asserted.

        (ii) The jury decided that such plea was sustainable in respect of allegations 3 and 4, being that he was a tax evader and a criminal, respectively, but that it had failed in respect of the appellant being either a “drug dealer” or a “loan shark” (allegations 1 and 2) (para. 10 of McDonagh No. 1).

        (iii) It then proceeded to award Mr. McDonagh €900,000 damages without having answered, at least ex facie, the second question asked of it on the issue paper, which question was directly based on the provisions of section 22 of the Defamation Act 1961 (“Question No. 2” or “the section 22 issue”), being part of the statutory regime applicable to this case.

    The Court of Appeal ([2015] IECA 225)
        (iv) On the defendant’s application the Court of Appeal not only set aside the jury’s verdict on perversity grounds in respect of allegation 1, but went on to affirmatively hold that the evidence inescapably established that the plaintiff was in fact a drug dealer: it then so declared him to be. Likewise, the Court set aside the jury’s decision on the loan shark allegation but, for reasons not material, ordered a re-trial on that matter.

        (v) On Question No. 2, the Court was satisfied that such question had not been answered, in circumstances where the jury was obliged to do so. Despite the submission that an answer could be inferred, Hogan J., with whom the other two members of the Court agreed, could not be satisfied that such was the case.

        (vi) As a result, the judgment continued as follows at para. 103 thereof:

            “Quite independently of any other consideration this in itself would have been enough to justify the setting aside of the jury verdict, as it cannot be said that the jury returned a verdict in accordance with law or that they gave any consideration to the implications of a defence which the law afforded to the newspaper.”
        (vii) This view, in the context of the original trial, was obiter, in that a retrial had been ordered on other grounds. Moreover, as the Court of Appeal had ordered a retrial on a single defamatory meaning only, section 22 of the 1961 Act could have no effect on that retrial. However, what the quoted observation was intended to convey was that even if there were no other grounds to order a retrial, the failure to answer Question No. 2 would in itself have been sufficient to make an order to that effect.

        (viii) The Court of Appeal offered no view on the question of damages. I make this point only because of a suggestion advanced before this Court that the issue of damages was still live before the Court of Appeal. I do not accept that this is so, as the entire foundation of the damages claim disappeared with the Court’s view on the drug dealing and loan shark allegations.

    The Supreme Court
        (ix) This Court granted leave for a further appeal on five questions. One related to the status of the rule in Browne v. Dunn (1893) 6 R. 67, and a second related to the adequacy of the trial judge’s charge on the plaintiff’s lack of credibility. Both have been addressed in the judgments delivered by Charleton J. and myself in McDonagh No. 1. Another two certified questions were answered by this Court’s decision to reinstate the verdict of the jury on the drug dealing and the loan shark allegations. The fifth and final question, namely, the constitutional point, was dealt with somewhat differently by Charleton J. and myself, but nothing of continuing impact turns on that distinction. However, the Court refused leave on the section 22 issue.

    Following McDonagh No.1
        (x) Following delivery of the judgments of this Court herein referred to, the parties were asked to make further submissions on “what’s next”, which is my term and not that of the Court. Their attention was specifically drawn to two matters, namely, whether a further hearing before this Court was necessary on the section 22 issue and/or on damages, or whether there should be a retrial on one or more of such issues.

        (xi) Having received these submissions the Court determined on the 12th July, 2012, that it would hear further arguments on each of these matters on a de bene esse basis. Such hearing took place on the 19th July, 2017.

        (xii) Leaving aside the jurisdictional issue for a moment (paras. 6 and 33 of this judgment), a central point in how the instant appeal should be finally disposed of is this Court’s decision on whether Question No. 2 on the issue paper was or was not answered by the jury. That question, which is at least in part critical to how I would now proceed, reads as follows:

            “Question No.2 - Issue Paper

            The learned court [i.e. the Court of Appeal] erred in law or in fact in finding that the failure of the jury to answer the second question would have justified the setting aside of the jury’s verdict.”

        (xiii) My conclusion on that matter, its consequences and the other issues arising are the subject matter of this judgment.

5. Although outlined in summary form above, it is I think helpful to set out in full the relevant part of the issue paper which went to the jury. That reads as follows:


        Has the Defendant proved:

            (a) That the Plaintiff was a drug dealer.


            (b) That the Plaintiff was a loan shark.


            (c) That the Plaintiff was a tax evader.


            (d) That the Plaintiff was a criminal.


        If the answer to all parts of Question 1 is yes, proceed no further.
      2. If the answer to one or more parts of Question 1 is no, but the answer to one or more parts of Question 1 is yes, do the words not proved to be true materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges?
If the answer to 2 is no, proceed no further.

3. If the answer to 2 is yes, assess damages.”

The jury’s answers are set out at para. 20, infra.

6. Apart from the very real difficulty which arises from this Court’s refusal to grant the appellant leave to further appeal Question No. 2, a point which I will return to later in this judgment (paras. 33-34, infra), the first question which arises out of that issue is why such question was left to the jury in the first instance. The answer lies in its substantive provisions and its importance where the defence of truth is established in respect of some defamatory meanings, but not in respect of others. Its historical context must first be noted.

Partial Justification at Common Law
7. At common law, it was always possible to separately justify one or more of a number of allegations, which afforded a partial defence to the publisher (Sutherland v. Stopes [1925] A.C. 47). However, for justification to succeed as a complete defence, it was necessary to establish the truth of the entire libel. The position therefore was that unless the whole of the libel could successfully be substantiated, a plaintiff was entitled to damages in respect of any material part which was not proved to be true, provided only that such part, of itself, formed a substantial element in the overall action (Goodburne v Bowmans 131 E.R. 712; (1833) 9 Bing. 532). Although of historical antiquity, the case of Helsham v. Blackwood (1851) 11 C.B. 111 at 129 summarised the position accurately:

        “To make a good plea to the whole charge, a defendant must justify everything that the libel contains which is injurious to the plaintiff. If the libel charges the commission of several crimes, or the commission of a crime in a particular manner, the plea must justify the charge as to the number of crimes or the manner of committing the crimes.”
Against this background, and noting several other cases of similar vintage and to the same effect, statute intervened. Before introducing the section, however, it is worth also noting the following in this context.

8. Even where unsuccessful in establishing either a complete or a partial defence of truth, that same evidence could be led in mitigation of damages. As stated by Neill L.J. in Pamplin v Express Newspapers [1988] 1 WLR 116:

        “There may be cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will be unable to bring himself within the statutory extension of the defence contained in section 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damage, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.”
See also para. 11.14 of Gatley on Libel and Slander (9th Ed., 1998). This situation directly feeds into the point made at para. 12 of this judgment.

Section 22 of the Defamation Act 1961
9. Section 22 of the Defamation Act 1961 (“the 1961 Act”), modelled verbatim on section 5 of the English Defamation Act 1952, was enacted to ameliorate the position of the defendant in the circumstances described. That section reads as follows:

        “22. In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.” (Emphasis added).
This provision has been carried over in substance by section 16(2) of the Defamation Act 2009.

10. There are several aspects of the section which need to be noted:

        (i) It is trite law to say that a successful justification plea is a complete defence to a suit in defamation. Where applicable the section results in a dismissal of the plaintiff’s entire claim. It is thus first and foremost a liability issue.

        (ii) It is a moot point as to how the record stands after such provision has successfully been invoked. As in this case, does the Court file still record the jury’s answers to questions 1(a) and 1(b), or are such answers modified as a result? The better view is, I think, the former, but if such be the case, do the answers given have any continuing influence or effect of any description?

        (iii) The application of the provision is fact/opinion driven: without a causative diminution in reputation there is neither libel nor compensatable damage. What the section demands is an exercise by which the relative impact of those charges which have been established may be weighed or measured against those which have not. There is therefore a balancing exercise involved.

        (iv) Whilst the section does not provide any guidance as to its implementation, it seems clear that the process demanded involves establishing a respective start point and an end point. If by reason of what is established the former is substantially the same as the latter, then the charges not established have not materially impacted on the plaintiff’s reputation, wherever on the vertical scale that might be. If, on the other hand, there is a further deterioration in reputation, then the section has not afforded the publisher a defence to what was published. It matters not, on the liability side, where either the start or end points are positioned, provided of course that added insult has been caused to reputation.

        (v) The starting point for compensation of an unsullied character is that the person’s reputation is unblemished, unstained and intact. To publish the same defamatory statement of a person with a tarnished reputation may not cause the same harm to that person. I emphasise the word “may”, because some antecedent blemishes may be so remote from the reputational sting of the libel that the same should be disregarded. In this context, whilst the seriousness of the unproven allegation is a relevant factor, it is not conclusive and the statutory defence may still be available even in such circumstances.

        (vi) Let’s assume that a plaintiff has been wrongly accused of minor public order offences of a trivial nature but has also correctly been accused of being a sex offender. It may be difficult to see how the failure to establish the truth of the former could have any negative impact on the plaintiff’s character as affected by the latter. A second example along the same lines might be where the plea has failed in respect of a petty theft allegation, but succeeded in respect of a manslaughter one. It is very difficult to see how the failure of the former and success on the latter could not afford the publisher a complete defence.

        (vii) The case of Cornelius v De Taranto [2001] EMLR 12 provides a concrete example. The defendant was able to establish the truth of two allegations, namely, that the plaintiff (i) had lied to a person charged with preparing a report for a legal claim, and (ii) had a disturbed mental condition which prevented her from dealing with her problems in a rationale and balanced way. Despite its failure to prove a third, which was that as a 19-year old, some 30 years previously, she had broken into a shop and had stolen goods, and despite the seriousness of this claim, nevertheless it was held, given its antiquity, that the same did not materially impact upon her reputation in the context of what was proved to be true. Therefore the claim did not succeed.

11. The section does not appear to have featured heavily in the case law of this jurisdiction. A rare example, however, is the case of Murphy v. Times Newspapers Limited [2000] 1 I.R. 522, where Keane J. outlined what the common law position was, and the changes which section 22 of the 1961 Act brought about. Apart from that, however, there was little else said on the provision.

12. A further and important feature of the section, which has practical significance in this case, must be noted. As stated, at the core of what is involved is an evaluative process of measuring the difference, if any, between the reputation as reflected through the lens of what has been established, on the one hand, and what has not, on the other. It seems to me to be critical that the same tribunal of fact is the sole decision maker in this overall exercise. It would not, I fear, be possible to have any semblance of a fair trial by permitting one tribunal to evaluate the impact on reputation of those allegations which have been proved, and another tribunal to determine damages in respect of allegations not established. Likewise with any suggestion that a new jury would have to proceed on the assumption that the answers previously given in relation to the drug dealing and loan shark allegations must remain in place. This viewpoint is further emphasised by the common law position on the admission of evidence in mitigation of damages even where such evidence was primarily led in an unsuccessful complete or partial justification defence (para. 8, supra). Whilst this situation has some unfortunate consequences for Mr. McDonagh, which are referred to at para. 60, below, nonetheless I cannot see how it can be avoided.

Question 2 must be answered
13. It is, I think, common case amongst all judges of this Court that an answer to Question 2 is essential for the integrity of this defamation action. Where the difference emerges is that in the judgments of Denham C.J. and O’Donnell J., with whom the majority agree, they conclude, essentially from the issue paper but also from some surrounding remarks made by the trial judge, that one can infer the jury’s answer to this question. I respectfully but very firmly come to a different conclusion.

14. It may be useful, at this stage, to set out precisely how the section 22 issue was addressed by counsel for the respective parties in their closing speeches, and by the trial judge in his charge to the jury. On behalf of the respondent newspaper, counsel stated the following in relation to question 2:

        “Question 2, I will read it out because it looks like a bit of a brain teaser but it has a simple enough explanation. Question 2 reads:
            ‘If the answer to one or more parts of Question 1 is no, but the answer to one or more parts of Question [1] is yes, do the words not proved to be true materially injure the plaintiff’s reputation having regard to the truth of the remaining charges?’ [The second reference to Question 1 in fact says Question 2 in the transcript; it is not clear whether this was a spoken error or an error in the recording of what was said.]
        That’s a quote from a section of an Act and is expressed in legalese, but it’s a simple enough idea and it’s this: if you accuse somebody of four serious crimes but you can only establish that he is guilty of three, you can still win the case if it doesn’t make any difference that he wasn’t guilty of the fourth crime. So what you have to do when you are answering question 2 is this: even if you have to answer ‘no’ to some part of question 1, does that make any difference to Mr. McDonagh’s reputation when you look at the questions to which I answered yes? In my submission, if a jury comes to the conclusion that a person is guilty of tax cheating on a large scale, of criminality, of large-scale cheating of the UK social welfare system, of loan sharking at rates of up to 100%, then he is the sort of person who prays upon the most vulnerable and weak members of society. Those are all despicable crimes.

        Now, I am confident that you will find he is a drug dealer, so you won’t come to question 2. But if per chance you didn’t, I suggest to you that makes no difference. He is a person who has no reputation, deservedly no reputation because of what he has done.

        So to put it in its simple way: if the various things about Mr. McDonagh all mean that he is a serious criminal, does it make any difference to describe him as a serious criminal in another category too? The answer to that, I suggest to you, is no.

        Now, if you answer 1(a), (b), (c) and (d) ‘yes’, the matter is at an end. If you don’t do that, you proceed to question 2. If you answer that ‘no’, the case is at an end. It’s only if you answer question two ‘yes’ that you come to question 3, which is asking you to assess damages.” (Emphasis added)

From this passage it seems quite clear that in the newspaper’s view the application of the section was a critical limb of its overall liability defence: as such, whilst the jury was obviously urged to proceed in a particular way, nonetheless what they were told was that irrespective of whatever view it might take, the question had to be answered.

15. In his closing argument, Mr. Doyle SC on behalf of Mr. McDonagh started as follows, on this question:

        “Then you will get to question 2. This is a subtle area because you are talking about reputation. Again, the judge will direct you very carefully about what you’re allowed to take into account when you’re assessing someone’s reputation. The evidence about reputation in this case was given I suppose by Mr. McDonagh himself but, importantly, by Mr. Murray.”

16. Counsel then recounted Mr. Murray’s evidence as to the appellant’s reputation, relying in the main on the fact that as a publican in Sligo in the 1980s and 1990s, with a connection to Mr. McDonagh through a local football team, Mr. Murray would surely have known if he had any reputation as a drug dealer. This portion of the closing speech clearly related to Mr. McDonagh’s reputation more generally, rather than to the technical operation of section 22 of the 1961 Act. Such is quite clear from the fact that counsel went on to refer to the fact that Mr. McDonagh had himself been granted a licence to run a pub in Sligo, indicating that he must have been viewed as a “fit and proper person” for such activity and that there was either no objection by the local gardaí, or that any objection was overcome. Again, it was said that this reflected well on his reputation.

17. Mr. Doyle SC then concluded thus on question 2:

        “So question 2 on the Issue Paper is really to deal with the situation where you decide, all right, they haven’t established he’s a drug dealer, they haven’t established he’s a loan shark, they have established he’s a tax evader and criminal. Or, they haven’t established he’s a drug dealer but they have established the other three.

        As Mr. McCullough said, does he have a reputation for which you should award him damages? On the basis of what I have just told you, ladies and gentlemen, when you carefully assess the evidence again, of course he has a reputation: he was a traveller ducking and diving. But to suggest, as Mr. McCullough has in some way, that he has no reputation because he has a reputation as a drug dealer is nonsense when you take into account the licence and the evidence of Mr. Murray.

        You will then, I am confident, get to the question of damages. …”

As can be seen, what was said by the appellant’s counsel was highly distant and quite remote from the potential impact of section 22 on his client’s position; instead he concentrated on making the general point that the appellant’s reputation in Sligo was not that of a drug dealer. This approach is entirely understandable, as it almost certainly would not have been in Mr. McDonagh’s interest to dwell on the section.

18. It is necessary to recount how the trial judge charged the jury on this point. He stated as follows:

        “Then we go on to question 2 which superficially, as has already been pointed out to you, seems a little bit complicated. But it’s really not.
            ‘If the answer to one or more parts of question 1 is no but the answer to one or more parts of question 1 is yes, do the words not proved to be true materially injure the plaintiff’s reputation having regard to the truth of the remaining charges?’
        Now this leads us on to the question of damages which I have to touch on again. Damages in this case are intended, should you decide to award damages -- I emphasise that I am only embarking on the question of damages because you must understand everything. You are not to assume, because I have discussed damages, that I am of the view that you should award damages or that it is a necessary matter for you. I have to deal with it because it might arise. And because I deal with it, you mustn’t think that I am suggesting it should arise.

        Damages in this case will be compensatory. If you think that the plaintiff’s reputation has been materially injured you will then move on to question number 3, which is the assessment of damages.”

That was the extent of what the learned trial judge said on this issue.

19. Although the defendant does not complain about the adequacy of the charge on this question and probably could not, given the absence of any requisition, it is at best ‘marginal to the bone’. No mention was made of the fact that the primary focus of the section is liability-related and that it does not, in the first instance, link into damages. Unfortunately, the bulk of the judge’s comments on this matter seemed to touch upon the issue of damages simpliciter rather than explaining the meaning of the section and how it might also operate on the liability side. Be that as it may, this is what the learned judge said, and no issue was taken with it.

20. In addition, it is important to set out the verdict as read out by the trial judge:

“Mr. Justice de Valera: Has the jury reached a verdict?

Forewoman: Yes, we have.

Mr. Justice de Valera: Have you written it down on the Issue Paper?

Forewoman: Yes, I have.

Mr. Justice de Valera: Can you hand it in to me please? (same handed to the Court) This is a unanimous verdict, is that correct?

Forewoman: Yes.

Mr. Justice de Valera: The answers to the questions are as follows:

              ‘Has the defendant proved:
(a) that the plaintiff was a drug dealer

Answer: No.

(b) that the plaintiff was a loan shark

Answer: No.

(c) that the plaintiff was a tax evader

Answer: Yes.

(d) that the plaintiff was a criminal

Answer: Yes.’

The answer to number 3 is:

                  ‘If the answer to 2 is yes, assess damages.

                  €900,000 plus costs.’”

The learned judge then thanked the jury for their service and bid them farewell. Evidently at that point the jury as an entity was discharged and the individual members dispersed. From that point onwards the jury’s status at trial level was at an end.

21. Finally, the following exchange is then recorded in the transcript:

“Mr. Justice de Valera: Well, gentlemen.

Mr. Doyle: In those circumstances, judge I would ask you to enter judgment for the sum of €900,000 and I would ask you for my costs.

Mr. Mohan: For the record, was there an answer to question 2?

Mr. Justice de Valera: Not as such.

Mr. Mohan: It was blank on the … (INTERJECTION)

Mr. Justice de Valera: It says:

                  ‘If the answer to 2 is no, proceed no further.’

                  What they have done is to proceed further. It didn’t require an answer and there isn’t one.”

Decision on the Question No. 2 Issue
22. Section 22 of the 1961 Act and its successor, section 16(2) of the Defamation Act 2009, have been on the statute books now for almost 60 years. It was enacted to replace, or at least enhance, the common law position which is set out above. Its importance, where more than one defamatory meaning is left to the jury, is central to the defence of truth, and it also plays a secondary role on the question of damages. Therefore, it is a provision well known to all libel practitioners and is one which a judge in charge of a defamation action, whether before a jury or not, must be ever conscious of.

23. In my judgment in McDonagh (No. 1), I expressed agreement with the Court of Appeal on the view which Hogan J. took of this issue and with that part of his judgment which is quoted at para. 3(vi), above. However, in light of what the majority of this Court has decided on Question No. 2, it is necessary to deal further with this point.

24. As every lawyer will know, a case may be won or lost, or its outcome at least heavily influenced, by what questions are left to the jury and what form of wording or phraseology they might take. Quite often, therefore, a great deal of debate, if not downright controversy, may centre on such questions. It is doubtful if anyone would suggest that meaningless questions should be left or that abstract questions, neither essential nor relevant to the jury’s verdict, should be asked. It must therefore be assumed that when agreeing to leave a particular question the judge is satisfied as to its materiality and its necessity to that end. If this be correct, one could hardly argue that any resulting question, so posed for jury consideration, does not have to be answered.

25. Another related feature which deserves comment is the undoubted fact that the submitting of questions to the jury is separate and distinct from the judge’s charge. Such questions are not a written part of the charge; neither does the judge in his address seek to impose additional questions, or withdraw those which have been left. To my knowledge it has never been and is not now the situation that questions are left even where it is obvious that a direction on a particular topic is both sufficient and appropriate. Where that is the case the judge and only the judge deals with it. Therefore, the role of the judge in his charge and that of the jury in its deliberations on the questions asked are quite separate and quite distinct, one from the other.

26. If the failure to answer Question No. 2 was noticed prior to the jury’s discharge, I cannot imagine but that counsel would have insisted on their reassembly for the purposes of further deliberation, so that an answer to the question could be inscribed on the issue paper. I equally have no doubt but that the judge, either at the behest of counsel or on his own motion, would have adopted exactly the same course if the situation had been correctly assessed. I do not accept that such would simply have reflected a ‘belt and braces’ approach: in any action, particularly in a defamation case before a jury, all parties thereto are entitled to a position of certainty on such an important question. In any event, that of course did not happen. It was, as I have stated, too late for any corrective action involving the jury when the error was noticed.

27. The trial judge, evidently realising this predicament, with no possible outcome other than declaring a mistrial, suggested that by assessing damages, Question No. 2 had inferentially been answered. Can we consider for a moment what this necessarily must have involved? It is that the jury had deliberated on the question, as it was on the issue paper and as instructed to do so; had reached a consensus as to its answer; but then made a conscious decision that there was no necessity to record that answer on the paper. With the same consciousness it must also have felt that those with an interest would immediately, and with apparent ease, recognise that such an answer would be inferred. Even leaving aside the difficulty which this has posed for judges, with the Court of Appeal and two members of this Court taking one view, but the remaining members taking another, such a scenario of itself seems highly unlikely.

28. In response to this very type of submission, which was advanced on behalf of Mr. McDonagh, the Court of Appeal agreed that this may have been the case. However, having pointed out that an answer to the question was, in its view, a mandatory requirement of the jury’s lawful deliberation, it went on to say that in the absence of a recorded reply it was quite impossible to know whether or not they had considered the matter. In effect, the Court was saying that the suggestion made by the plaintiff may or may not have been correct, but there is no way of knowing. I respectfully agree.

29. This is not a situation where the only explanation is that it deliberately ignored the question or failed to understand or appreciate it, although given the paucity of the judge’s charge on this point that possibility certainly could not be ruled out. There is at least one further explanation which is entirely innocent, namely, that due to inadvertence it was overlooked. One simply cannot know. Such a possibility is as likely as not and attracts some support from the amount of damages as assessed by the jury. It was, by any standards, a very substantial award for a person whose character they ought to have recognised was badly tarnished in the manner described. Whilst I fully accept that this is also speculation, its basis and foundation is at least as solid as the view that an answer can be inferred.

30. In his judgment, O’Donnell J., in suggesting that by not answering the question the jury was being “scrupulous rather than careless”, seems to give the impression that when commencing their deliberations they were instructed not to do so, or at least that they were left with that idea or belief. That view, at least in part, is based on the structure or format of the issue paper; in particular, unlike Question No. 1, the word “answer” does not appear at the end of Question No.2. Rather, what is stated is that “[i]f the answer to 2 is no, proceed no further”.

31. With great respect, I wish to offer a number of observations on this view. First, the issue paper, insofar as relevant to this point, is headed “Questions”: there simply could be no doubt but that what follows are purely that. In addition, a question mark appears after Question 2. Questions require answers - it is the jury’s sole function to provide them. Secondly, the direction at the end of Question 2 is “if the answer to 2 is no, proceed no further” with Question 3 reading “if the answer to 2 is yes, assess damages”. Whatever these sentences may be described as, both require an answer to Question 2: this is pivotal, not simply in a downstream direction but also in an upstream context. Section 22 is positioned at the junction of liability and damages. If the answer to that question is ‘no’, the newspaper wins on liability; if the answer is ‘yes’, the plaintiff is entitled to damages but only for a blemished reputation. I therefore do not believe that the separation of Questions 2 and 3 is in any way artificial: in fact it is essential when one recalls that section 22 is a complete defence on the issue of libel or no libel. Thirdly, and in any event, it must be answered and I respectfully cannot yield to the format of the paper having any particular significance in this Court’s assessment of whether there was or was not an answer to the question. Fourthly, it is said that answering Question 3 strongly suggests that the jury answered Question 2 and did not answer it ‘no’. Whilst the latter is undoubtedly true, the former is a non sequitur. Finally, I see no distinction of substance between the requirement for the jury to “answer” a question, and a question in the form of a direction to assess damages. By so doing, they clearly answer that direction. I therefore cannot accept any of this reasoning for the conclusion so reached by the learned judge.

32. Given the importance of the section, I am satisfied that the only correct way to proceed is that in the absence of a definitive and expressed answer in the issue paper, it must be concluded that the question was not answered.

This Court’s Jurisdiction to Hear the Section 22 Issue
33. The above discussion on section 22 of the 1961 Act could not of course take place if this Court could not reconsider its previous decision to refuse the appellant leave to further appeal on that question. Whilst O’Donnell J has dealt with this issue in his judgment, and whilst I have proceeded as if this Court had such jurisdiction, nevertheless I expressly reserve my view on this type of issue for another case, where the attendant difficulties in the instant appeal are not present. It must be remembered that this is not a situation where the order granting leave reserved the right to re-open the issue, or that such possibility was canvassed at a directions hearing. Furthermore, the substantive hearing was over before the matter was raised again. The situation is therefore quite complicated.

34. In addition, the appellant did not, as such, engage in this debate, suggesting only that Order 58 Rule 29(1) of the Rules of the Superior Courts provided a sustainable basis upon which to proceed. That clearly is not the case, and neither does Order 58 Rule 3 RSC have any relevance. Instead there are statutory and constitutional issues involved, including the interplay between Article 34.5.3° and Article 34.5.6° and how both provisions should be looked at in light of, inter alia, section 44 of the Court of Appeal Act 2014, which inserted a new section 7 into the Courts (Supplemental Provisions) Act 1961. None of these matters were addressed by the appellant, which is unfortunate as these important issues would surely benefit from specific submissions. Accordingly, for the moment I defer offering any conclusive view on the matter.

Disproportionate Damages: Retrial or Court Substitution of Damages
35. In McDonagh (No. 1) I held, as followed from the views which I expressed as to the appropriate way to further proceed, that the damages awarded to the appellant bore no relationship to the reputational harm suffered and accordingly must be set aside. I did so by applying the appellate standard or test for intervention as set out or touched upon in several cases which remain good law today. These cases, which include Quigley v. Creation Ltd. [1971] I.R. 269, Barrett v. Independent Newspapers [1986] I.R. 13 (“Barrett”), de Rossa v. Independent Newspapers [1999] 4 IR 432 (“de Rossa”), O’Brien v. Mirror Group Newspapers Limited [2001] 1 I.R. 1 (“O’Brien”) and my judgment in Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214 (“Leech”), have all however also emphasised the distinctive, unique and special role of the jury in our system of defamation trials. As is now clear from the other judgments about to be delivered in this appeal, every member of the Court is in agreement on that point. The question then arises as to how the appeal should be disposed of. Having set aside the jury’s verdict on quantum, there are only two possible options open: either an order for a retrial before a newly constituted jury, or for this Court, of itself, to undertake the task of assessing damages.

36. At one level, given my conclusion on the section 22 issue and the consequent need for a retrial in any event, it could be said that the question posed is self-obvious and self-answering: as Question No. 2 on the issue paper must be answered in the affirmative before access to damages can be had, and as the same tribunal must hear the evidence on both (see para. 12, supra and para. 60, infra), it necessarily follows that the question of damages must also be remitted. As a result, there is no need as such to further address in this judgment the consequences of the damages award being disproportionate. However, as the majority of my colleagues have determined to substitute their own view as to damages, instead of remitting the matter for a retrial, I will venture a little more on the reasons why I believe that this case is entirely ill-suited to such a course. In fact, may I reaffirm my strongly held view, expressed in Leech, that the most appropriate course in a defamation case where damages have been set aside is to remit for a retrial before a freshly constituted jury. In this case, for the reasons already given, that would require a retrial on all issues.

37. As a starting point in this respect, it is appropriate to have regard in the first instance to the basic fact of the retention of juries in High Court defamation cases at all. Despite various legislative interventions over the years abolishing the right to have civil actions, including personal injuries actions, heard by a jury - such as through section 94 of the Courts of Justice Act 1924, section 6 of the Courts Act 1971 and section 1 of the Courts Act 1988 - there has been no change in the position relative to jury trials in High Court defamation cases. The retention of this mode of trial is reflective of the particular role which juries have as the arbiter of community values in such trials. The sui generis nature of the action and the distinctiveness of the jury’s positioning therein cannot be overestimated as factors of the highest significance in favour of a retrial. In light of these considerations, I am of the view that this Court should not substitute its own view of damages in defamation actions save in some exceptional circumstances.

38. In expressing this view, however, I should make clear that I do not doubt this Court’s jurisdiction to so do. Section 96 of the Courts of Justice Act 1924, as re-enacted in section 48 of the Courts (Supplemental Provisions) Act 1961 (“section 96 of the 1924 Act”), provides the statutory framework in this regard. The relevant part of that section reads:

        “In any appeal to which this section applies the appellate tribunal may, in lieu of ordering a new trial, set aside the verdict, findings, and judgment appealed against and enter judgment as the court considers proper.”

39. In Gahan v. Engineering Products [1971] I.R. 30, a personal injuries case, Ó Dálaigh C.J. appeared to expressly found this power of intervention on the provisions of section 96 of the 1924 Act. However, in Holohan v. Donohoe & Anor [1986] I.R. 45, another personal injuries case, there was much discussion in the three judgments delivered (Finlay C.J., Henchy and McCarthy JJ.) regarding whether the power to substitute damages was statutorily based or whether in fact it derived from the constitution (see Henchy J. at p. 57). McCarthy J., dissenting, took the position that the Court did not have the power to substitute its own view of damages for pain and suffering at all. The debate regarding the basis for such power need not detain us. I refer to the case simply to make the point that in the thirty years since it was decided, the Court has reassessed damages in personal injuries cases on multiple occasions.

40. However, until very recently, the practice in defamation cases has been strikingly different, notwithstanding section 96 of the 1924 Act. As observed by Keane C.J. in O’Brien:

        “In this jurisdiction, of course, the court has for some time now been prepared in actions for damages for personal injuries to substitute for the sum awarded by the High Court such sum as the court thinks appropriate. That power, however, has never been exercised by the court in cases of defamation.” (p. 18 of the report)

41. Indeed the law reports fully bear out this observation. A retrial was ordered in Barrett, though this of course is explicable by the fact that the majority found that the trial judge was in error in directing the jury that the words complained of were defamatory. However, Finlay C.J. and McCarthy J., who would have allowed the appeal on the issue of damages only, would have directed a retrial confined to that issue; there was no mention of the possibility of a substitution of damages by the Court. The majority dismissed the appeal in de Rossa, though Denham J. was of the view that the award “was excessive and on the principles of reasonableness and proportionality I would reduce it to £150,000.” In O’Brien, Keane C.J. seems to have ordered a retrial on damages almost as a matter of course, with Denham J. on that occasion reserving for another case “the matter as to whether it would be open to this court to substitute an award of damages.” Similarly, in AE Dawson v Irish Brokers Association (Unreported, Supreme Court, 27th February, 1997, per O’Flaherty J.), a retrial confined to the damages issue was ordered seemingly without discussion. Although the Court substituted its own view of exemplary damages in Crofter Properties Ltd. v. Genport Ltd. (No. 2) [2005] 4 I.R. 28, this is readily distinguishable, first, on the basis that the original award had been made by a judge sitting alone and, second, given the nature of the damages in question. Thus other than Leech, I know of no occasion where the Court has substituted its own view of damages in lieu of a jury award in a defamation case.

42. This raises the question of why a distinction has been created between defamation actions and personal injury actions. There is, in the first instance, an important difference between both causes of action in this respect. The courts have, for the most part, come up with a reasonable idea of what a broken leg is worth, the value of a lost arm, and so on. There is a market which bears this out. Such is not solely dependent on court judgments or related to the Book of Quantum, but in substantial part reflects the notorious practice, which has been commonplace now for decades or more, of settlements being reached between indemnifiers and plaintiffs, thus creating information which can readily be obtained within this market. There is also reasonable similarity between like cases. Accepting, of course, that a person’s age, profession, trade or calling and one’s physical and other characteristics will have a bearing (as they will on special damages, e.g. injury to a footballer’s leg, a pianist’s fingers, or the like), nevertheless, in general one will not have to search too far to find a reasonable comparator in respect of most personal injuries claims. Adjustments or variations may be required but in most instances such can be achieved. The comments of Geoghegan J. at p. 42 of O’Brien are very much to the same effect. By contrast, by virtue of both the relative infrequency of defamation cases and the extent to which they necessarily turn on their own facts, the same cannot be said of defamation.

43. In addition, defamation actions feature a much more nebulous injury than that as found in personal injuries cases: one must be compensated for damage to reputation, injured feelings, hurt, distress, humiliation, a violation of privacy and dignity, as well as any other consequence of the harm thereby inflicted. In that context I refer to what I said in Leech regarding the difficulties which may face an appellate court in substituting its own view of damages. These problems are particularly acute in defamation cases. As stated in that judgment:

        “How can a transcript convey the depth of a person’s feelings who has been publicly humiliated; whose sense of esteem and personal worth have been undermined, even shredded in some cases; whose presence even amongst strangers may result in being shunned or rebuffed? How can a cold print give a sense of that person’s hurt, perhaps touching the essence of who she is, of her character and personality, without which her sense of value could well be shattered? I very much doubt that without observing, assessing or listening to the essential witnesses, in particular the successful plaintiff, and without seeing her perform in the witness box, the members of an appellate court, deprived of such a facility, can truly feel the gravity of the injury, of the harm and of the damage for which that plaintiff is fully entitled to compensation. Such is a major handicap of significant proportions.” (para. 102 of the report).

44. There is a further point of considerable substance, which is the underlying basis upon which damages are assessed in such actions, as distinct from that which drives awards in personal injuries cases. The genesis for this difference is dealt with at some length at paras. 35-41 of my judgment in Leech and accordingly I will not further repeat what was said there. However, there is one aspect of this which should be mentioned: it is reflected in the following short passage from the judgment of Windeyer J. in Uren v. John Fairfax & Sons Pty. Ltd. (1966) 117 C.L.R. 118, 150:

        “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.” (Emphasis added)
This element of damages, which is policy motivated, is based on the courts’ view that the defamed must be able to demonstrate to the world at large, by reference to the award, that the publication was utterly spurious. See also Broome v. Cassell & Co. Ltd [1972] AC 1027 at 1071, where Lord Hailsham L.C. said very much the same thing.

45. In McDonagh (No. 1), reference is made to the sanctity of the jury’s role in defamation cases (paras. 89-98). This sanctity attaches to all aspects of its involvement, including the determination of what damages a particular plaintiff should get in a particular case in light of the defamatory remarks in question. In a personal injuries action, which of course at trial level is heard solely by a judge, interference at appellate level is in essence simply a reversion to the norm: the damages are reassessed such that they fall within the bracket typically commensurate with the injury, taking other relevant factors into account. In a defamation case, however, appellate substitution of the award is a usurpation of the jury’s role. There can of course be cases of truly perverse awards, but for the most part the jury’s verdict is at the very least some indication of the community’s view of the injury inflicted to the defamed’s reputation. As there will seldom if ever be an apposite comparator in respect of such an award, a substitution of damages will therefore require more than what will typically be necessary in a personal injuries action; in the latter the award can simply be varied such that it falls within the expected scope of damages for the injury at issue. There is no such general range in relation to defamation, and so the court is forced to take upon itself the mantle of deciding de novo what the damage to reputation is worth. This is an inherently different and a much more intricate exercise than a personal injury reassessment, where the expected upper and lower ends of the spectrum are likely to be much more clear-cut. Thus where a defamation award is substituted by the court on appeal, the judges essentially substitute their own view of how much the damage to the defamed’s reputation is worth, rather than a jury making that assessment. As noted by Lord Hobhouse at para. 50 in Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40, [2002] 1 W.L.R. 3024:

        “For the purposes of the law of defamation, what is relevant is the effect of the publication upon the perceptions of the ordinary reader of the ‘Sun’ newspaper, not upon those of a judge of the Court of Appeal, and how it would alter such a reader’s view of the plaintiff.”
Whilst this was said in the context of an assessment of where the ‘sting’ of the articles in question lay, I believe that such rings no less true when it comes to damages. The award of damages should compensate the plaintiff in light of the injury done to his reputation in eyes of the public, rather than in the view of superior court judges.

46. It appears from their judgments that the primary motivation of the majority of the Court for substituting damages in the instant appeal, rather than having the issue tried by another jury, is essentially the long-running nature of this litigation. Undoubtedly 17 years is a long time under any circumstances and I would be as anxious as any other to bring this matter to an end as quickly as possible: however, it would ill serve all to do so where the exigencies of the circumstances simply do not facilitate such a course. Consequently, despite the obvious attraction of closure, I cannot agree that this alone is sufficiently compelling for the Court to adopt the approach which it has. No submission has been made, apart from one related to the lapse of time, which may have constitutional or conventional implications for a retrial. The normal reasons for terminating a long-running case, such as decisive memory loss, a missing witness, loss of vital documentation etc., are not present in the instant appeal. Moreover, in light of the other remaining issues - the jury’s lack of answer to Question 2 being the primary consideration - I conclude that the most apt way to proceed would be a retrial in front of a fresh jury.

47. Furthermore, I would be very concerned to see this type of appellate reassessment become commonplace. Section 13 of the Defamation Act 2009 expressly provides that this Court, on hearing an appeal, may “substitute for any amount of damages awarded to the plaintiff by the High Court such amount as it considers appropriate.” This applies equally to judgments entered pursuant to the verdict of a jury (section 13(2)). That section self-evidently has no application to the instant case (section 3(1) of the 2009 Act).

48. Leech and the present case have in common that the majority have found it proper to substitute their own view on damages. They also have in common the particularly protracted and long-running nature of the litigation in question. Section 13 of the 2009 Act is not restricted in its operation to such circumstances, and evidently has been enacted as an express measure by which disproportionate awards may be reviewed. A sustainable award must of course be fair to both parties and be arrived at in accordance with well-established precedent. Quite evidently appellate intervention will be required from time to time so as to ensure that the appropriate balance is struck. However, and notwithstanding the section, which in substance may not have added much, if anything, to section 96 of the 1924 Act, I would have grave reservations about the Court itself reassessing damages in anything but the most compelling of circumstances. On this point I agree with the many observations of Dunne J. in her judgment in this case, where she has emphasised that only in exceptional circumstances should the Court so act. We differ only in respect of our conclusions on whether this case presents such circumstances. Whilst the longevity of the litigation is a factor, it is but one to be considered; this along with a host of others which may arise in any given case. Therefore each such factor must be considered and no single one can determine the outcome.

49. In this case, one could not but be struck by the disparity between the quantum of the jury award and the figure arrived at by the majority. They differed substantially. As alluded to above, this is not simply an adjustment but is a complete substitution of a fresh award. I readily accept that the whole point of appellate interference in the first instance is that the original award was disproportionate. A relatively modest adjustment was made in the Leech case, where the original figure was reduced ultimately to just over two thirds of the jury’s award. I would have reduced it to slightly over half of what was awarded. Even if disproportionate in amount, the sum awarded by the jury in the first instance is inherently reflective of its view of the injury to reputation suffered by the defamed. To largely stand aside that sum, and to arrive at a figure which bears little relation to it, is to effectively jettison the jury’s view. In effect, the jury’s role has been disregarded and instead the Court has assessed damages de novo. In lieu of the view of twelve members of the community as to damages, even as a starting point from which to make adjustments, the Court has entirely assumed that role and come to a conclusion, which must be taken to reflect the damage to the applicant’s reputation, entirely distinct from that reached by the jury. While I do not doubt its general jurisdiction to reassess, nonetheless the sum suggested offers powerful support for the proposition that the more appropriate course is to remit the matter for further jury consideration. The reasons in principle for this, centred on the sanctity of the role of the jury in defamation actions, are articulated throughout my judgment in McDonagh (No. 1) and this judgment.

50. It is hard to believe that a routine redetermination of damages by this Court would result otherwise than in the reduction of the value of awards in the vast majority of such cases. If this case is any barometer, such reduction may be very significant. I would be most reluctant to countenance a situation whereby a successful appeal as to the size of the award would likely have the effect of the Supreme Court substituting in its place an award of an altogether smaller order. Such would very quickly deprive the law of defamation of its teeth. Awards must of course be fair to both parties but I would not overlook the potentially positive dissuasive effects of larger awards. Such are likely to ensure that the publisher makes sure to verify the truth and veracity of the content, thoroughly checks the sources, and generally takes every available precaution prior to publication. The retention of juries in defamation cases and their concomitant power to assess the award of damages is itself part of the appropriate balance that has been struck in this jurisdiction between the freedom of expression and the right to one’s good name. What protective value is there left in the law of defamation if awards are routinely liable to be reduced, particularly in such a way that the predicted level of compensation is unlikely to outweigh the expected circulation figure resulting from the inclusion of the untruthful information? If that were generally to occur, the risk would simply be assessed by way of a cost-benefit analysis.

51. In making these observations, it might be thought that I am suggesting there should as a matter of course be some punitive aspect to damages: this is not really the point which I intend to make. What the law is trying to do is to compensate for harm and injury to good name, not to police the newspaper industry. If, however, the start point even for an untarnished reputation should be pitched at a level of little or no concern to the industry, then the inherent respect for one’s good name which the constitution demands could be seriously diminished as a matter of routine, certainly if the defamed has any antecedent reputational harm. In such circumstances there would be no point in suggesting that the industry might be sanctioned for its unethical behaviour: in any event that is not what the law of defamation aims to do. Consequently, at the level of principle, damages play a key role in the balance between good name and free expression.

52. In addition, could I repeat the views which I expressed in Leech regarding any cross-reference to or reliance on awards in personal injuries cases (paras. 32-45 and 73-75 of the report) or defamation actions (paras. 46-49 and 76-84 of the report) as comparators for what a jury should award in any given case. Likewise with what I described as “auction advocacy” (paras. 29-31 of the report).

Independent Newspapers (Ireland) Limited v. Ireland
53. In light of the recency of the judgment of the European Court of Human Rights in Independent Newspapers (Ireland) Limited v. Ireland (Application no. 28199/15, judgment of the 15th June, 2017), arising out of this Court’s judgment in Leech, it is perhaps worth addressing briefly that Court’s conclusions. In so doing the intention is not to offer criticism in respect of that judgment but simply to contribute to the positive judicial dialogue referred to by O’Donnell J in his judgment in this case (para. 36).

54. The European Court, as part of its conclusion that there was a breach of Article 10 ECHR on the facts of the case, found that there had been a defect in reasoning at appellate level. If one were to highlight the main factor leading to such conclusion, it was that “further clarification was lacking regarding why, in particular, the highest ever award was required in a case which the Supreme Court did not categorise as one of the gravest and most serious libels.” This apparent incongruity stands at the heart of the violation.

55. With the greatest of respect to the ECtHR, I believe that this conclusion perhaps does a disservice to the comprehensive judgment of Dunne J. for the majority in Leech. It is true that the learned judge found that the gravity of the libel at issue in that case was not as serious as that in de Rossa (see paras. 139 and 155 of the report). That, however, is but one of the factors which an appellate court will take into account when considering the proportionality of an award. Dunne J. went on to consider the extent of the publication (para. 140), the conduct of the defendant (paras. 141-146) and the impact of the defamation on the plaintiff (para. 147-151). As acknowledged by the ECtHR (§ 98), these same factors self-evidently fed into the ultimate determination of the award. It is unnecessary to retread the analysis in Leech; it should suffice to say that merely because the defamatory statement itself is not the worst such example which has ever been before the courts, it does not follow as a matter of course that the plaintiff is not entitled to the highest ever award of damages. That is but one factor, and I do not believe that it requires an over-generous reading of Leech to see that it was based on the other factors that such a large award was made. As is evident from the judgment of Dunne J. in Leech, and as highlighted by O’Donnell J in this case, the damage done to Ms. Leech’s business and professional reputation was a particularly distinguishing feature of that case.

56. It is, moreover, worth noting that the violations found by the ECtHR were grounded firmly within the presenting circumstances of the Leech case, relating as they did to the lack of “concrete indications” in the trial judge’s charge (§ 92) and the absence of “further clarification” of the reasons for the Supreme Court’s ultimate award of damages (§ 100). However, that Court did not raise any objection to the general system of trying defamation actions as exists in this country, nor was it critical of the retention of the retention of juries and their role in the process. As the Court pointed out:

        “105. The Court would stress that it is mindful of the respondent State’s attachment to the institution of the jury in defamation cases. In the Supreme Court McKechnie J. commented on the uniqueness of the jury’s representative function in this type of case, embodying the values of the community. For its part the Court considers that it is entirely legitimate to involve citizens in different aspects of the administration of justice … What is at issue in the present case is not the respondent State’s choice of a system of trial judge and jury, a choice that was recently reaffirmed in the 2009 Act that came about following careful reflection and debate at domestic level. Nor is it the task of the Court, as highlighted previously, to take the place of the national court. Rather, the issues are the nature and extent of the directions to be given to the jury by the trial judge to guide it in its assessment of damages and protect against disproportionate awards and, in the event that the appellate court engages in a fresh assessment, relevant and sufficient reasons for the substituted award.”

57. It has been observed by counsel since the delivery of that judgment on the 15th June, 2017, that the judge’s charge in this case was substantially the same as that in the Leech case, which was found by the ECtHR to be inadequate. However, as no point of appeal in relation to the charge had been pressed before that time, and as the parties in any event decided to settle the matter at the eleventh hour, there is no need to say anything further on that matter. At any rate, I highlight this point simply to stress that what the European Court was concerned with was whether the trial and appellate safeguards operated effectively in the Leech case itself, and not with an assessment of the efficacy of those safeguards in a more general sense. Therefore, as can be seen, the violation could not be classified as one of substance but rather one which was purely procedural.

58. However, lest it should be thought that this is merely the reaction of an appellate judge bristling at Strasbourg oversight, I should hasten to add that this Court has of course taken note of the fact that the European Court found a violation of Article 10 at appellate level, and such is a consideration for future decisions.

Final Order
59. In light of my conclusions on the section 22 issue, and also due to the disproportionate damages award, I am satisfied that a retrial, rather than a substitution of damages by this Court, is required. This course is not without perils of its own. Undoubtedly this is a long-running case but the witnesses remain available: no prejudice has been identified or relied upon to suggest that a retrial would not be fair.

60. It is also true, as counsel on behalf of Mr. McDonagh pointed out, that to order a full retrial would deprive the appellant of the findings in his favour on the drug dealing and loan sharking allegations as made by the original jury. Such, certainly at first blush, is a compelling argument against a full retrial. Although some suggestion was made that it may be possible to limit a retrial to the section 22 issue, or to that issue and damages, such a course could not realistically be countenanced by the Court. The determination of the section 22 point - and indeed damages also - necessarily requires a jury to hear all of the evidence. It would be altogether implausible to expect a freshly constituted jury to hear the entirety of the evidence whilst being bound by the findings, perhaps unsupportable in its eyes, of a previous jury on the critical issue of justification. Thus it is clear that a retrial would have to be on all the issues. As pointed out by Mr. McCullough SC on behalf of the newspaper, however, the apparent unfairness to the plaintiff of such a move is simply a litigation consequence of my decision: it is not at all uncommon that a full retrial will follow even where an appellant is successful on a single point only.

61. The approach which I have adopted reflects the newspaper’s curious but steadfast view that a retrial should be ordered. This may seem anomalous in light of the well-known lobbying and complaints by the media, articulated in many forums, including before the European Court of Human Rights, that appellate substitution of damages is the preferable outcome. Nevertheless, as a matter of law, and whatever the reasons therefor might be, I take the view that the respondent is correct in its submission on this occasion.

62. As mentioned in paragraph 1 of this judgment, the parties settled their dispute minutes before this Court was due to deliver judgment, and accordingly there will be no further proceedings between the parties. However, for the integrity of this judgment, it is important that the concluding paragraph as originally drafted should be included. It read as follows:

        “Therefore, despite the full acknowledgement that neither route is wholly satisfactory, I believe that the better course is to order a full retrial. This conclusion follows inexorably from my view on the section 22 point, and also independently on the damages issue. While I agree with the majority of this Court that the original damages award is disproportionate, in the circumstances I will express no view on what would have been an appropriate award. I would order a full retrial.”

        Judgment of Mr. Justice John MacMenamin dated the 27th day of July, 2017

        1. I am happy to adopt the description of the circumstances set out by O’Donnell J., McKechnie J. and Dunne J. in their judgments. Consequently, this judgment can be quite brief. I would not wish this brevity to lead to any conclusion other than that the Court is being asked to deal with certain matters of fundamental principle in this appeal. My concern is that, while accepting there are attractions to the course of action proposed by the majority, there are, to my mind, issues of precedential importance. I do not, however, wish to be seen as critical of the views of the majority. I share their concerns as to the long delays in this case, and the possible risk of unfairness in remitting for a retrial. But, to my mind, the consequences of failure to remit are weighty, and should be preferred.

        2. One concern is that, in embarking on the course of action suggested in relation to the first, “Q2” issue, the Court is constrained to give answers on questions of fact. The resolution of that issue is necessarily a factual question, or series of factual questions, and fall to be considered in light of the well-established jurisprudence of this Court (c.f. Hay v. O’Grady [1992] I.R. 210, recently applied by this Court in The Leopardstown Club Limited v. Templeville Developments Ltd., given on 11th July, 2017). A second concern is that, in substituting an award for the jury award, the Court is, in effect, carrying out a function which should, in all the circumstances, be left to a jury.

        3. The Court is admittedly having to address a uniquely difficult situation, where, in truth, all the choices are invidious. The option taken by the majority, which is, to assume an answer “yes” to Question 2, and to substitute an award of damages reversing the decision of the trial jury, undoubtedly has the practical advantage of slicing the Gordian knot and finalising this inordinately long-running litigation saga. In principle, there is jurisdiction for such a course of action (s.96 Courts of Justice Act, 1924). While it is true that the “remittal for rehearing” option argued for in this judgment would mean the case will have to be entirely retried before a judge and jury some 19 or 20 years after the events in dispute, in fact, neither side has identified any irretrievable real, prejudice which would arise, other than that inevitably caused by the elapse of time itself. This judgment is, therefore, confined, first, to the “Question 2 issue”, and later deals with the question, linked to the first, of the appeal against the damages award made by the jury. This case arises under the Defamation Act, 1961, and not its successor Act, enacted by the Oireachtas in 2009. For simplicity, the appellant will be referred to as “the plaintiff”; the respondent as “the defendant”.

        The Question 2 Issue

        Section 22 of the Defamation Act, 1961
        4. Section 22 of the Defamation Act 1961 provides:

            “22. In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.” (Emphasis added)
        5. The section in question is to be found in that part of the Defamation Act 1961 addressing “defences” to libel or slander. It constitutes part of the legislative consideration of the defence of justification. Its effect is that, when a defendant pleads justification, such defence is not to fail in circumstances where, hypothetically, some parts of the justification may be proved, and some parts are not proved. In such circumstances, the duty of the jury is to identify whether the plaintiff’s reputation was materially injured by the words not proved to be true, having regard to the truth of the remaining charges. This is necessarily a balancing process which should lie only within the province of a jury having heard the evidence. It is worth pausing here to consider the nature of the tasks a jury must carry out. In essence, the primary task is to assess whether a plaintiff’s reputation has been injured by the untrue words. This cannot be characterised as anything other than necessarily findings of fact, such as arose in Hay v. O’Grady. Next, a jury must make findings on the effect on a plaintiff’s reputation caused by those charges found to be true. Third, a jury must then consider whether the defence of justification succeeds or fails, all based on these factual findings. It is unnecessary to rehearse McCarthy J.’s observations in Hay v. O’Grady in this regard.

        The Role of the Jury in Defamation Proceedings
        6. The role of the jury is of very ancient origin. Originally, jurors were empanelled to act as witness providing sources of information on legal issues arising in their locality. But that role evolved, and, ultimately, those empannelled became detached adjudicators both in civil and criminal disputes. Over the years there have been countless instances where, in both categories of law, jurors have stood firm as a bulwark of democracy and freedom against the power of the executive, or of other powerful interests in society. In the late 19th Century, the role of juries began to be reduced by statute. It is, of course, true that there were reasons for this, particularly in cases of legal or factual complexity, where evidence or the law might be very technical. Since 1988, juries no longer play a role in this State in determining liability and damages in personal injuries claims. (s.1 Courts Act, 1988) Juries still, however, play some role in other areas of the law. Obviously, the jury plays a fundamental constitutional role in trial of serious criminal offences. But the Oireachtas has, also as a matter of policy, sought to maintain the role of juries in two categories of civil case where there are significant constitutional values involved. I think it is necessary to proceed with great caution in any course of action which might be portrayed as diminishing the role of the jury as a fundamentally democratic and legitimate institution. This is a case where both sides are represented by leading counsel of the highest ability: there is, therefore, every indication that a retrial would be well ordered and structured. But the issue goes a little deeper: the questions at issue here are quintessentially jury questions.

        7. In the first of the two categories assessed, false imprisonment, the main constitutional issue at stake is that of the liberty of the citizen. A number of false imprisonment claims are, from time to time, brought against members of the gardai. In the second category, that is, defamation, often brought against the media, the constitutional values at issue include those of citizens’ rights to their good name, and the right to freely express one’s convictions and opinions. The right to a good name, freedom of expression and public opinion are closely connected concepts, in which the concept of “the views of right thinking people” are inherently part of the test. Juries are intended to reflect the views of the public. They represent the public mind and public opinion in balancing the constitutional values embodied in statutory form. This “public dimension” is of great relevance in measuring whether a publication is actually defamatory at all; if it is, whether there is a defence to it; and if a publication is found to be defamatory, the measure of damages. The task in which a jury engages, therefore, in making determinations under s.22, is one where the legislative intent envisages the judgment of ordinary citizens should be engaged.

        8. If the members of a jury reach a determination adverse to a plaintiff under s.22, they may conclude that there is a total or partial defence to an action in libel. If the jury concludes decisively against a plaintiff, and in favour of a defendant on the issue, then that defendant will have a complete defence, notwithstanding the fact that, for example, a newspaper may have published certain damaging statements of a plaintiff, which, in fact, it has been unable to establish as being true. The jury balances that which it finds to be true against what is found to be untrue: The determination is one of fact. (See Plato Films v. Speidel [1961] AC 1090). As I now seek to explain, what is in issue here are truly jury questions.

        9. The jury in this case, unfortunately, left a blank after Qustion 2 set out in the judgments of my colleagues. They went on to answer Question 3, and awarded €900,000 damages to the plaintiff. In my opinion, it is unwise for the Court now to proceed and make a determination on the basis of what I think can only be inference or supposition, as to what the jury “must” have intended in so proceeding. It is true that in this case, on one interpretation, it can be contended that, in the words of the issue paper, by “proceeding” to deal with the question of damages, the jurors concluded it was unnecessary to deal with Question 2. But, there are other more disquieting possibilities. These include the not unreal possibility that the jury simply forgot or ignored the second question, and went directly to the third question from Question 1, without giving any consideration to the s.22 issue which arose in Question 2. If the jury failed to consider a key aspect of the defence case, this makes the difference between the verdict being lawful and unlawful. It may partly explain the level of the award.

        10. The issue paper is to be seen as one integrated document which contains a logical series of interlocking and mutually-dependent questions, which are to be seen technically as “special verdicts” on each such question. The nature of the issue paper here was such that the questions are, to my mind, not susceptible to being “severed” one from the other, even if the questions could have been better framed. There is a logical progression from the answer to each question from the one before. If the logical progression is broken, not only the issue paper flawed, but the question arises as to whether the jury can be shown to have given a lawful verdict. To my mind, this cannot be conclusively shown; the failure of the jury to address Question 2 consequently rendered the verdict at trial irretrievably flawed, and unlawful. Because the logical progression was broken, because it is not shown they fully considered the defence, the verdict as a whole strayed into unlawfulness. Entirely accepting the practical attractions of adopting a different course, I do not think it lies within the province of this Court to remediate the situation by seeking, as it were, to place itself in the position of the jurors, and thereafter to address the question which requires answers on factual issues on the basis of how the jury must have thought and acted.

        11. Counsel for the plaintiff forcefully and persuasively submitted that the answer to Question 2 is one of coercive inference, to the effect that the jury must have concluded they did not need to answer Question 2, in light of the instructions to “proceed” to Question 3 contained on the issue paper. There is some validity in this, but it does not answer the question as to whether the jury members performed the duty entrusted to them. Justice must be seen to be done.

        12. The essential importance of s.22, therefore, arises in the context of the lawfulness and fairness of what is published. It goes to the question of entitlement to one’s “good name”. In the distant past, if a newspaper said of an individual that he had been convicted a number of times for dishonesty, but, on being sued, found that he had, in fact, only been convicted twice, the newspaper could not then entirely justify, because it could not prove all the words as published were true. It could not bring forward the two convictions in mitigation of damages. In theory, such plaintiff would have received damages on the footing that he had never been convicted at all. (Goodbourne v. Bowman [1833] g Bing 432 l). But this is not now the law. Although a newspaper cannot justify in whole, under s.22 it can justify in part. It can plead that, insofar as the words meant that the individual had been convicted twice, these were true, and thus bring the two convictions before a jury. This rule is based on the proposition that the law does not permit a defendant, in mitigation of damages, to adduce evidence which actually tends to justification. But the law permits this evidence to be adduced, and to be pleaded in partial justification. (See Plato Films Limited v. Speidel [1961] AC 1090, at 1141). Section 22 is, therefore, an essential requisite as part of the fairness of defamation trials. I think it undesirable to assume that some part of a mandatory procedure was complied with, when, for all one knows, that assumption may be ill-founded.

        13. The plaintiff’s argument suffers from this logical flaw. It asks the Court, effectively, to set to one side the fact that there was a failure on the part of the jury to answer one of the questions properly deemed essential for the fair resolution of the issues between the parties. That question, dealing with partial justification, was raised in Q2. But the logic of the argument, if extended, would be that it would be permissible to set to one side the failure of the jury to answer some other equally vital question. Q2 and the issue it raises cannot, in some sense, be “demoted” in importance. The question represented an essential part of the newspaper’s defence. The task of the jury, having been charged by the judge, was to address and be seen to have addressed each of the issues which, in law, they were under a duty to address. The omission to answer the question was, to my mind, fatal.

        14. In the appeal of this case to the Court of Appeal, Hogan J., put the matter very succinctly. He said:

            “102. …It is true that, as Mr. Doyle S.C. (counsel for the plaintiff) urged in the course of the appeal, the third question on the issue paper is premised on the assumption that the jury will have answered the second question in the affirmative (“If the answer to question 2 is ‘yes’, assess damages…”). It is quite possible that the jury well understood this and that by answering question 3 and assessing damages, they were effectively stating that the plaintiff's reputation was nonetheless affected by the publication of the drug dealing and loan sharking allegations even if it was also shown that he was a criminal and a tax cheat.

            103. This may well represent what the jury were thinking when they proceeded to answer question 3 without having first answered question 2. The fact remains, however, that it is quite impossible to know how or why the jury failed in terms to answer an essential question which they were required by law to answer. Quite independently of any other consideration this in itself would have been enough to justify the setting aside of the jury verdict, as it cannot be said that the jury returned a verdict in accordance with law or that they gave any consideration to the implications of a defence which the law afforded to the newspaper.” (Emphasis added)

        15. As my colleague, McKechnie J., pointed out in his first judgment in this appeal, there is a possibility that the jury misunderstood the question, or even perhaps ignored it altogether. As he correctly stated, “it is unclear how or why this might have occurred”.

        16. The issue as to the jury’s intention is not resolved by reference to counsel’s speeches or the judge’s charge. The judge simply said “then we go on to Q2 which superficially, as has already been pointed out to you, seems a little bit complicated. But it’s really not. If the answer to one or more parts of Q1 is no, but the answer to one or more parts of Q1 is yes, do the words not prove(d) to be true materially injure the plaintiff’s reputation, having regard to the truth of the remaining charges?” But the nature of the charge, although adequate in formal terms was not such as would enable this Court to preclude the possibility that there may indeed have been a misunderstanding or omission, and that the jury may indeed have taken a shortcut, or concluded that the Question 2 issue was, as the judge put it, “a little bit complicated”. I accept this can be portrayed as a strict view; but it arises on an issue of principle, that is lawfulness, the proposed answer to which, in turn, constrains this Court to embark on its own findings of fact in the absence of any answer to the question.

        17. With all respect to the jury, it is relevant to point out that on the established jurisprudence of the Court there is consensus that the jury verdict is to be set aside on the basis that there is no objective link between the defamation and the award, and that it is a verdict which no reasonable jury could have arrived at. (Barrett v. Independent Newspapers [1986] I.R. 13; De Rossa v. Independent Newspapers [1999] 4 IR 432). The course of action proposed requires a discomfiting degree of approbation and disapprobation. On the one hand, one is forced to assume that a jury, which acted unreasonably in awarding a disproportionate sum by way of damages, in fact, and on the other, acted “reasonably” in interpreting the issue paper in such a way as to allow a coercive inference, an answer to Q2 was unnecessary.

        18. The necessity to resolve factual issues at this defamation action must be understood in light of the fact that the plaintiff sought damages on the basis, inter alia, that the article described him as a criminal and a tax cheat. But somewhat remarkably, although his record of previous convictions had been agreed between his own counsel and counsel for the defendant, the plaintiff himself when he testified denied that some of those agreed convictions concerned him at all. A reasonable jury might well have remarked, among other things, upon the apparent discrepancy between counsel’s opening of the case and the plaintiff’s own evidence, and taken this into account in weighing up and balancing process which is essential in determining s.22 questions. We simply do not know. Many issues doubtless come into the equation when a jury is engaged in its deliberation on an issue of fact. The process can indeed be opaque, but that does not invalidate it.

        19. This libel action was, quintessentially, one where the plaintiff’s own credibility as a witness was at stake. One of the primary issues was whether the plaintiff had given the jury a credible account of the events in London, and their sequel. Whether or not a witness is credible is a question of fact. (McCaughey v. IBRC & Another [2013] IESC 17). It is now almost trite to say that appeal courts do not have the opportunity of seeing witnesses when they are testifying. The observations of Henchy J. in Northern Bank Finance Corporation v. Charleton [1979] I.R. 49, at page 189, are as apposite regarding the jury in this case as were his remarks on the role of the trial judge in Northern Bank. It is a jury which experiences the mood of the courtroom, the demeanour of the witnesses, and other features of the trial, which may be crucially determinative in the ascertainment of the facts. A fortiori, this is true where it is the highly nuanced role of the jury to assess whether material was defamatory, whether there was a defence, whether damages should be awarded, and the measure of such damages. The jurors were to carry out this process bringing to bear all their experience in the outside “real” world. It is they who were to be the essential fact finders on the Q2 issue. The traditional respect due to findings of fact derives in part from the high regard which, historically, was owed to a jury verdict. Bearing in mind all the judicial observations as to the “arid pages of the transcript”, and the inability of an appeal court to put itself in the role of a trial judge, it is hard to see that this Court should now assess the nature, tenor and character of the factual testimony on both sides of this hard fought case.

        20. For these reasons, I think it inappropriate for this Court to, as it were, answer Question 2 itself, as if it were the jury. It leads to further difficulties. The issue in this Court was not a matter of whether a jury finding was perverse, or self-contradictory, which might be simpler for this Court to resolve. Here there is simply no definitive answer to Q2, and the course of action proposed logically thereafter involves a number of steps. Constrained to make a supposition on what the jury must have intended, it then becomes necessary to address factual s.22 questions not addressed by the jury, and later then to determine that the same jury acted unreasonably in making the award of damages. I find myself, therefore, in agreement with the observations of Hogan J. who, in the Court of Appeal, concluded that:

            “Quite independently of any other consideration this in itself would have been enough to justify the setting aside of the jury verdict, as it cannot be said that the jury returned a verdict in accordance with law or that they gave any consideration to the implications of a defence which the law afforded to the newspaper.”
        21. To my mind, the appropriate appeal court response to the unfortunate omission which arose in this case can only be to order a complete retrial, because of the very nature of the matter omitted. These were factual issues. It is common case that it would be impossible to envisage circumstance where, for example, Question 2 could be isolated from the others and itself be separately remitted for trial. It would render the role of a jury impossible. But the logic of this point goes further again. It emphasises the integrity of the entire issue paper, which asked three questions, all of which were, logically, mutually dependent, and followed logically one from the other.

        22. It is necessary now to turn to the linked damages issue. To what damages was the plaintiff entitled? It is noteworthy that counsel for the plaintiff submitted that the damages in this case should come within the top range of damages awards. He resolutely defended the jury award of €900,000, and, indeed, went further, submitting that, but for the plaintiff’s own somewhat tarnished record and reputation, and his previous convictions as a younger man, the award of damages could justifiably have been some hundreds of thousands higher, that is to say, significantly in excess of €1 million. This would have put this case very near the highest defamation award ever made.

        23. It is no disrespect to the force of these submissions to say that no member of the Court accepts this proposition. Each member of the Court accepts the award is too high. But the true question is as to what is the appropriate order, in light of the failure to answer Q2? There is strong authority to the effect that a special regard should be had to jury awards. The substituted award would be a very substantial reduction of the plaintiff’s own estimate of the worth of the case. The suggested margin between the actual and potential full award, as submitted by counsel for the plaintiff, again shows the fundamental importance of Q2. Even on the plaintiff’s own case, the fact of his tarnished reputation could be seen as having a value running into hundreds of thousands of Euro in the jury award. This, too, is surely a jury issue.

        24. In Barrett v. Independent Newspapers Limited, cited earlier, Finlay C.J. pointed out that, while a jury’s assessment of damages could be disturbed on 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.”

        25. Hamilton C.J. expressly approved this passage in his judgment in De Rossa v. Independent Newspapers [1999] 4 IR 432. In De Rossa, Hamilton C.J., having quoted Bingham M.R. in John v. MG.N Ltd. [1996] QB 586, to the same effect, and approved Finlay C.J.’s statement, quoted above, went on to hold that an appeal 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.” (page 463). (See also the judgment of this Court in O’Brien v. MGN [2001] 2 I.R. 1; Crofter Properties Limited v. Genport Limited (No. 2) [2005] 4 I.R. 28; Leech v. Independent Newspapers (Ireland) Limited [2014] IESC 79, Supreme Court, Unreported, 12th December, 2014).

        26. In citing these passages, it is important not to be misunderstood. A rational, structured approach to damages awards in defamation claims is necessary. There can be no issue as to the propriety of a trial judge giving clear guidelines and everyday comparisons to a jury. But none of this is to the point in the instant case.

        27. Actually, in the circumstances of this case, on the one hand, a strong case could be made for a significantly higher substitute award than that now proposed. The newspaper story was run while the plaintiff was actually in custody. The plaintiff was never charged with any offence, having been characterised as “King Rat” in the article. Each of the gardai who testified denied under oath that they were the source of the leak, which was splashed over the front page, and other pages, of the newspaper. The mystery as to how the story got into the newspapers was not resolved. The plaintiff’s own evidence was to the effect that he was shunned in his locality, that he was barred from pubs, that posters were put up denouncing him. How all this actually affected the plaintiff is also, surely, a matter which can only properly be determined by actually seeing and hearing the respective cases on both sides.

        28. But, these observations are not to be understood as naïve. The subtext of the defendant’s case was that the plaintiff’s narrative was lacking in credibility, that he had engaged in unlawful activities in undertaking the journey to London, and that the jury should so conclude. One could easily imagine an unconvinced jury giving a low award, or even no award.

        29. In short, I am not persuaded that this is a case to steer a middle course, no matter what the attractions. Here the outcome proposed means the plaintiff is denied the vast preponderance of the jury award on foot of a consideration of the transcript, which the authorities of this Court establish is a poor substitute for the views of the primary finders of fact, that is, the jury. By the same token, the newspaper is denied the order which it sought, that is, a complete retrial. It is denied the opportunity to challenge the plaintiff’s narrative before a jury.

        30. While one can readily see the advantages in this Court substituting its own award, I think the course of action adopted begs a further question. Taken to its ultimate logic, I am apprehensive that the award by this Court is capable of being portrayed by critics of the jury system as begging the question of whether juries are truly necessary in defamation proceedings?

        31. In the circumstances, therefore, I would decline to address the issue of damages. It seems to me that this is a situation where the entire matter should be remitted for a new trial. There is, of course, some irony in that this course of action is being advocated by a newspaper, and that it is the newspaper which is contending that this Court should not substitute its own view regarding damages for that of the jury. Other media representatives have expressed views to the contrary. But that is not the point. What is necessary is not only that justice be done to both sides; but that justice be seen to be done, in the manner best suited to carry out the necessary task of vindicating the rights engaged on both sides.

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