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High Court of Ireland Decisions
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Cite as:  1 IR 400,  IEHC 22
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Judgment Title: Lowry -v- Smyth
Composition of Court:
Judgment by: Kearns P,
Status of Judgment: Approved
Neutral Citation Number:  IEHC 22
THE HIGH COURT
2011 18 CA
JUDGMENT of Kearns P. delivered on 10th day of February, 2012.
This is an appeal brought by the plaintiff against the order of the Circuit Court dated 31st January, 2001, whereby Her Honour Judge Heneghan refused to grant summary relief to the plaintiff pursuant to s. 34 of the Defamation Act 2009.
The plaintiff is a T.D., businessman, and former Government Minister. The defendant is a well known journalist and broadcaster.
The indorsement of claim in the Civil Bill recites that on 24th June, 2010, in a TV3 programme entitled “Tonight with Vincent Browne” the defendant uttered the following words concerning the plaintiff:-
The plaintiff further contends that on 27th May, 2010 the defendant published an article in the Irish Independent newspaper concerning the plaintiff which was headlined “Tribunal will reveal findings on money trail to ex-Minister”, the words following or words to the effect of the following namely:-
In his Civil Bill the plaintiff claimed the following reliefs:-
(b) A correction order pursuant to s. 30 of the Defamation Act 2009 directing the defendant to publish a correction of the defamatory statement in a form, content, extent and manner such as the court might deem fit;
(c) An order pursuant to s. 33 of the Defamation Act 2009 prohibiting the publication or further publication of the statements in respect of which defamation was alleged.
(d) Relief pursuant to s. 34 of the Defamation Act 2009 for summary disposal of the action.
In his replying affidavit, Mr. Sam Smyth stated that in respect of the TV3 programme, the words which he used did not have the meaning contended for by the plaintiff, and/or were true in their natural and ordinary meaning and/or consisted of honest opinion. He further stated that he had been advised that the words he used were a fair and reasonable publication on a matter of public interest. He offered a similar line of defence in respect of the words contained in the Irish Independent article.
The defendant in his affidavit made extensive reference by way of background to the reports of both the McCracken Tribunal and the Moriarty Tribunal. The affidavit referred to portions of the report of the former which detailed various payments made to Mr. Lowry and to a company set up for the benefit of Mr. Lowry by Ben Dunne, and certain payments made into offshore accounts held by or for the benefit of Mr. Lowry by or on the instructions of Mr. Dunne, which were intended to and did facilitate the evasion of tax. The McCracken Tribunal further noted that a sum of £395,000 had been paid to contractors for refurbishment work done on the home of Mr. Lowry in County Tipperary which, in the opinion of the Tribunal chairman, had been made by Dunnes Stores on the instructions of Ben Dunne with a view to assisting the plaintiff to evade tax.
The defendant’s affidavit then referred at length to information gleaned from proceedings before the Moriarty Tribunal and from an article in the Irish Times by Colm Keena to state that the Tribunal was investigating links between the plaintiff and certain property transactions in Doncaster, Cheadle, Mansfield and Carysfort, the total value of which was of the order of £5m stg.
Based on the foregoing, Mr. Smyth contends that his article and comments were all made on matters of significant public interest.
In relation to the TV3 programme, Mr. Smyth denies that any words he spoke on that occasion were uttered either falsely or maliciously. He contends that seen in context, the words are true in their natural and ordinary meaning. He states that the words spoken by him on TV3 related to the fact that the lengthy trail of investigations into the plaintiff’s affairs culminating in the Moriarty Tribunal had its origin in the fact that he was found to have engaged in wholesale tax evasion and to have told lies about his business and financial affairs. It was made clear that the plaintiff had not used his position as Minister to extract public funds for his own benefit, but rather that he had engaged in a tax fraud. This was true. It therefore followed that the plaintiff had lied and cheated. Mr. Smyth further deposed that no conclusions were drawn from that as to the plaintiff’s fitness and/or suitability to be a Minister or T.D., but if and insofar as they were present by inference, they were matters of honest opinion and were fair and reasonable publication on a matter of public interest. He further deposed that the only conclusion that one could reasonably draw from what had been discovered about the plaintiff led inevitably to the conclusion that he was indeed corrupt, dishonest, untrustworthy and both unfit and unsuitable to be a Minister or a T.D.
In relation to the Irish Independent article Mr. Smyth denied that the words were published falsely or maliciously or that they had the meanings contended for by the plaintiff. In order to read them in context, the impugned words had to be read in conjunction with the preceding paragraphs in the Independent article which stated:-
He therefore contended that he had a full and valid defence to any defamation proceedings brought by the plaintiff.
At the conclusion of the hearing, the learned Circuit Court judge, having taken time to read the alleged defamatory material attached to Mr. Smyth’s affidavit, including matters to do with the McCracken and Moriarty Tribunals, Mr. Lowry’s dealings with Dunnes Stores and his personal statement to the Dáil in 1996 after his resignation from Cabinet, ruled against the plaintiff. She held that test for Mr. Lowry’s case was very high, that it must be shown that the defendant had “no defence” reasonably likely to succeed. She could not find that such was the case and the matter now comes by way of appeal to this court from that decision.
Before turning to a consideration of the relevant legal provisions, it might be appropriate at this stage to emphasise that the hearing before this court is a full rehearing of the original application. That being so, I do not regard either side as being confined in argument or submissions to the identical arguments or submissions placed before the learned Circuit Court judge.
THE DEFAMATION ACT 2009
The following sections are of relevance and importance in the context of the present application:-
(2) Upon an application under this section, the court shall make a declaratory order if it is satisfied that –
(a) the statement is defamatory of the applicant and the respondent has no defence to the application,
(b) the applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement, and
(c) the respondent failed or refused to accede to that request or, where he or she acceded to that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.
(3) For the avoidance of doubt, an applicant for a declaratory order shall not be required to prove that the statement to which the application concerned relates is false.
(4) Where an application is made under this section, the applicant shall not be entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates.
(5) An application under this section shall be brought by motion on notice to the respondent grounded on affidavit.
(6) Where a court makes a declaratory order, it may, in addition, make an order under sections 30 or 33, upon an application by the applicant in that behalf.
(7) The court may, for the purposes of making a determination in relation to an application under this section in an expeditious manner, give directions in relation to the delivery of pleadings and the time and manner of trial of any issues raised in the course of such an application.
(8) No order in relation to damages shall be made upon an application under this section.
(9) An application under this section shall be made to the Circuit Court sitting in the circuit where—
(a) the statement to which the application relates was published, or
(b) the defendant or one of the defendants, as the case may be, resides.
30.— (1) Where, in a defamation action, there is a finding that the statement in respect of which the action was brought was defamatory and the defendant has no defence to the action, the court may, upon the application of the plaintiff, make an order (in this Act referred to as a ‘correction order’) directing the defendant to publish a correction of the defamatory statement.
(2) Without prejudice to the generality of subsection (1), a correction order shall -
(a) specify -
(i) the date and time upon which, or
(ii) the period not later than the expiration of which,
the correction order shall be published, and
(b) specify the form, content, extent and manner of publication of the correction,
(3) Where a plaintiff intends to make an application under this section, he or she shall so inform -
(a) the defendant by notice in writing, not later than 7 days before the trial of the action, and
(b) the court at the trial of the action.
(4) An application under this section may be made at such time during the trial of a defamation action as the court or, where the action is tried in the High Court sitting with a jury, the trial judge directs.
33.— (1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion:-
(a) the statement is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement to which the order relates.
(3) In this section ‘order’ means -
(a) an interim order,
(b) an interlocutory order, or
(c) a permanent order
34.— (1) The court in a defamation action may, upon the application of the plaintiff, grant summary relief to the plaintiff if it is satisfied that -
(a) the statement in respect of which the action was brought is defamatory, and
(b) the defendant has no defence to the action that is reasonably likely to succeed.
(2) The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.
(3) An application under this section shall be brought by motion on notice to the other party to the action and shall be grounded on an affidavit.
(4) An application under this section shall not be heard or determined in the presence of a jury.”
(b) an application for a declaratory order, whether or not a claim for other relief under this Act is made.”
(b)an order prohibiting further publication of the statement to which the action relates.”
It is also a matter of considerable significance that an applicant who makes an application to court under s. 28 is not entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates. Section 28 also provides that no order in relation to damages shall be made upon an application under that section. Further, where the court makes a declaratory order, it may, in addition, make an order under s. 30 or s. 33, upon an application by the applicant in that behalf. Relief under all of these sections was originally sought in the instant case. Somewhat strangely, however, when the matter came to court the plaintiff saw fit to proceed under s. 34 alone. This would suggest that a view was taken that an application brought on the basis that the defendant had “no defence” (as provided in s. 28) offered less prospect of success than one brought under s. 34 which provides for relief where it can be shown the defendant has “no defence to the action which is likely to succeed”.
The explanatory memorandum to the Bill explains the purpose and function of s. 34 in the following manner:-
Having regard to the nuclear nature of the relief available to either party under the section some consideration of what test the Court should apply in deciding whether or not to grant relief is clearly required.
That test was outlined succinctly by Hardiman J. in Aer Rianta v. Ryanair  4 IR 607 when he said as follows (at p. 623):-
By the same token, an application brought under s. 34 by a defendant to dismiss a plaintiff’s claim would also require to measure up to a test as to whether or not the plaintiff has demonstrated a stateable cause of action and not merely one which is merely vexatious or frivolous.
As was pointed out by Keane C.J. in Twohig v. Bank of Ireland (Unreported, Supreme Court, 22nd November, 2002):-
SUBMISSIONS OF THE PARTIES
In essence therefore the plaintiff’s case might best be summed up as follows: “Your statements are false and on the face of them defamatory and you cannot stand them up because to do so you would have to rely on the findings of Tribunals of Inquiry which are inadmissible in other proceedings”
On behalf of the defendant, Mr. Oisín Quinn S.C. first argued that the meanings ascribed by the plaintiff to the words published were incorrect. He submitted that he could contest the case on that basis alone. His client’s second line of defence would be that the statements complained of were in fact true and correct. Third, the defendant was entitled to express an honest opinion on matters of public importance, particularly where the same involved public figures and had been the subject matter of extensive investigation by one or more tribunals of inquiry.
Insofar as the first complaint was concerned, it could not conceivably be the meaning of the words complained of that Mr. Lowry had his hand in a physical till or even, slightly less literally, that he was thieving in that sense. The plaintiff had always accepted that the bill for the house renovation in Tipperary had been paid by Dunnes Stores and that the plaintiff had not paid tax for the benefit received, having only settled with the Revenue in April 2007, shortly before the 2007 General Election. The defendant therefore clearly had an arguable case to make on all three mentioned grounds of defence in relation to the TV3 interview.
In relation to the second complaint, Mr. Quinn argued that he was not relying on evidence or findings of the Tribunals themselves, but was entitled to make a statement that the Moriarty Tribunal was investigating the possible involvement of Mr. Lowry in four property transactions and the value of those transactions. For the purpose of recording that fact, it was not necessary for the defendant to rely on evidence or findings made by the Moriarty Tribunal.
But of course tribunal hearings and findings may be reported upon by the media and tribunal findings may certainly provide a roadmap or trail for other bodies or persons with an interest in the subject matter of inquiry, be it the Oireachtas, the Office of the Director of Public Prosecutions or litigants who engage in private litigation. Shorn of this characteristic, the function of tribunals would be rendered totally nugatory and pointless. The critical consideration in the cases cited above is that tribunal findings do not of themselves constitute material of probative value in such proceedings. They may however point to sources of evidence which may then be accessed in that separate context. Thus to the extent that the learned Circuit Court judge had regard to the tribunal materials as evidence, hearsay or otherwise, upon which she could rely to reach her decision, she would, on the authorities, have been in error. However, to the extent that she had regard to the material in question as pointing to potential sources of evidence to which the defendant, quite apart from tribunal findings, could resort to formulate a defence to the plaintiff’s claims, she was in my view entirely correct.
The demanding test in an application of this sort requires the judge dealing with it to be satisfied that the defendant has no defence with a reasonable chance of success. I do not believe the Circuit Court judge could have been so satisfied in this case. This is not in my view a case where the defence to either allegation can only be made or necessarily depend only on evidence or findings delivered by tribunals of enquiry. I believe a roadmap has been disclosed in the tribunal reports which is indicative of how and in what way the defendant can marshal his defence without actually being forced to rely on the findings of either tribunal. The fact that the roadmap has been extensively referred to by Mr. Smyth in his affidavit should not be taken as an assertion that he cannot otherwise defend the proceedings than by relying on tribunal material.
In relation to the first allegation, I believe it is certainly open to the defendant to quite separately establish all or some of the grounds which would enable him to argue his defence successfully. Evidence of payments made to the plaintiff via his offshore accounts and in relation to the refurbishment of his home in Co. Tipperary and any failure to pay tax thereon are matters quite capable of being established otherwise than by evidence given or findings made by any tribunal. The defendant avers that, quite apart from anything said or found to have occurred by tribunals, the plaintiff has himself made admissions elsewhere with regard to the payments in question. In the course of his replying affidavit the plaintiff does not challenge specifically the receipt of the payments referred to by Mr. Smyth and indeed admits arriving at a settlement with the Revenue in 2007. It is hardly to be supposed that officials of the Revenue are not compellable witnesses for the purpose of demonstrating non-payment of tax.
In relation to the other matter complained of, I certainly believe it is open to the defendant to argue that to report the mere fact that a tribunal is investigating a person’s possible involvement in a series of property transactions with a possible link to the awarding of a mobile phone license is not necessarily defamatory per se.
Two cases amply bear out this proposition. Both were cited to this court in Griffin v. Sunday Newspapers  IEHC 331. in which the defendant newspaper sought an order under s. 14(1)(a) of the Defamation Act 2009 to narrow down the scope of the plaintiff’s claim on the basis that certain imputations ascribed to an article were not reasonably capable of bearing the defamatory meanings contended for by the plaintiff.
That case concerned a newspaper article which stated that there was a military investigation underway into allegations that members of the Army Rangers Wing took leave of absence to give weapons training to police in the Seychelles.
The issue which the court had to consider was whether a statement that an inquiry or investigation was under way was of itself indicative of wrongdoing and of having the defamatory meanings contended for by the plaintiff.
In the course of argument, reference was made to two cases which provided considerable assistance.
In Lewis v. Daily Telegraph Ltd.  A.C. 234, the facts were that the City Fraud Squad in London were inquiring into the affairs of a limited company of which Mr. Lewis was chairman. Both he and the company of which he was chairman issued writs against the newspapers who had issued front page stories to that effect. It was alleged that the words were defamatory in their ordinary and natural meaning and were meant and were understood to mean that the plaintiffs had been guilty of fraud or dishonesty. In the course of his judgment Lord Reid stated as follows in relation to reports about ongoing investigations (at p. 259):-
In Griffin, this Court endorsed the approach taken by Lord Reid in Lewis and by Hirst L.J. in Mapp to hold that, while the impugned article contained many statements to the effect that allegations had been raised, there was no suggestion that these allegations had been proven or that findings had been made adverse to the plaintiff.
Turning now to the substance of the statements or articles complained of, I am satisfied that the defendant may argue that the words “hand in till” in their correct meaning may be taken as referring to tax fraud and bills inappropriately picked up for the benefit of the plaintiff by business interests. The fact that Dunnes Stores paid €395,000 to the contractors who had refurbished his home in Co. Tipperary and that the plaintiff was availing of offshore accounts to receive other payments are also matters capable of being established in evidence other than exclusively through evidence or findings of any tribunal of enquiry. In this context, I note that the plaintiff in his various affidavits does not dispute that he had engaged in tax fraud, although he deposes that his tax affairs are now in order having reached a settlement with the Revenue in 2007.
In relation to the article in the Irish Independent, it is equally open to the defendant to report and comment on the fact, as fact it was, that the Moriarty Tribunal was following a “money trail” into certain property transactions to which it felt the plaintiff was linked and which had a combined value in the region of £5m Stg. The Carysfort Avenue transaction involved an examination of a sum of £147,000 Stg moving from accounts involving the plaintiff. The Cheadle and Mansfield property transactions being investigated had valuations of £445,000Stg and £250,000Stg and the Doncaster Rovers property transaction had an approximate value of £4.3 million Stg.
I am satisfied therefore that it cannot be said that the defence of this claim must necessarily fail. On the contrary, it seems clear that the defendant has a good arguable case in respect of both publications. That being so, the plaintiff’s claim for summary relief under s. 34 of the Act must fail. Having regard to the higher test imposed on a plaintiff applying to court for relief under s. 28 or s. 30 of the Act, it follows a fortiori that any claim maintained by the plaintiff under those sections must also fail. For all the reasons set out in this judgment I am also satisfied that the plaintiff has no entitlement to relief under s. 33 of the Act either. I will accordingly dismiss the appeal.