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  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):
I also made the following observation in the Leech case (at para.119 et seq) :
"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.  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."
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.  4 IR 432 (“de Rossa”) on the subject of damages and it would be useful to set out the quotation (at para 125):
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.
"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  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.  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’.”
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:
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):
"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. . . ."
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.
"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."
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  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:
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.
“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.”
3. In my first judgment in this case (McDonagh v Sunday Newspapers Limited  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
The Court of Appeal ( IECA 225)
(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 Supreme Court
(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:
(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.
“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.”
(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.
Following McDonagh No.1
(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.
(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:
(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:
If the answer to all parts of Question 1 is yes, proceed no further.
If the answer to 2 is no, 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?
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  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:
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.
“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.”
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  1 WLR 116:
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.
“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.”
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:
This provision has been carried over in substance by section 16(2) of the Defamation Act 2009.
“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).
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  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  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  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?’
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?
Mr. Justice de Valera: The answers to the questions are as follows:
(a) that the plaintiff was a drug dealer
‘Has the defendant proved:
(b) that the plaintiff was a loan shark
(c) that the plaintiff was a tax evader
(d) that the plaintiff was a criminal
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:
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.  I.R. 269, Barrett v. Independent Newspapers  I.R. 13 (“Barrett”), de Rossa v. Independent Newspapers  4 IR 432 (“de Rossa”), O’Brien v. Mirror Group Newspapers Limited  1 I.R. 1 (“O’Brien”) and my judgment in Leech v. Independent Newspapers (Ireland) Limited  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  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  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)  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:
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  AC 1027 at 1071, where Lord Hailsham L.C. said very much the same thing.
“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)
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  UKHL 40,  1 W.L.R. 3024:
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.
“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.”
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.
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  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:
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.
“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)
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  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  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  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:
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”.
“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)
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  I.R. 13; De Rossa v. Independent Newspapers  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  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  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:
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.
“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.”
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  4 IR 432. In De Rossa, Hamilton C.J., having quoted Bingham M.R. in John v. MG.N Ltd.  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  2 I.R. 1; Crofter Properties Limited v. Genport Limited (No. 2)  4 I.R. 28; Leech v. Independent Newspapers (Ireland) Limited  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.