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Cite as: [2000] IESC 70

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O'Brien v. Mirror Group Newspapers Ltd. [2000] IESC 70 (25th October, 2000)

THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
GEOGHEGAN J.
O’HIGGINS J.
289/99
BETWEEN:
DENIS O’BRIEN
Plaintiff/Respondent
AND

MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY
Defendants/Appellants

[Judgments by Keane C.J., Denham J. and Geoghegan J.; Murphy J. and O’Higgins J. agreed with Keane C.J.]

JUDGMENT delivered the 25th day of October 2000 by Keane C.J.

INTRODUCTION

1. This is an action for libel. The plaintiff is a well known and successful businessman: he holds, among others, the positions of Chairman of Esat Digifone, Esat Telecom and 98 FM. The first named defendant is the publisher of a newspaper called the Irish Mirror, of which the second named defendant is the Editor in Chief. The third and fourth named defendants are respectively the editor of the Irish edition and a journalist employed by the newspaper who wrote the article which gave rise to the action.


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2. The article in question appeared in the issue of the newspaper of the 10th June 1998 under the heading


“BURKE IN NEW £30,000 PROBE EXCLUSIVE BY KARL BROPHY.”

3. It was on the front page and began as follows:


“Former Minister Ray Burke is to be investigated for a THIRD alleged payment of £30,000, the Mirror revealed today.”

“The Flood Tribunal is to probe an anonymous claim that Mr. Burke received the donation from top radio boss, Denis O’Brien in 1989. According to the confidential letter - seen by the Irish Mirror - the former Dublin North TD allegedly received a donation of £30,000 when he was Minister for Communications responsible for the allocation of radio licences in Ireland.”

“Mr. O’Brien’s application for a licence for a station, 98 FM, was one of the two successful tenders for the lucrative Dublin area at that time.”

“Mr. Burke performed the new station’s official opening in November 1989. No evidence has yet been uncovered to support the allegations made in the note.”

“This may be a totally malicious effort to smear either Mr. Burke or Mr. O’Brien but the letter contains detailed allegations, said a top political source last night.”

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4. The article went on to refer to a total of eleven questions which had been sent to the plaintiff’s office concerning the allegations. The plaintiff was not prepared to answer four of the questions. Of the remaining questions, four were of particular relevance to these proceedings: the questions and answers were as follows:-


“Have you, or a company in which you are involved, ever made a single donation of, or in excess of, £3,000 to Mr. Raphael Burke?

ANSWER: No.

7. Did Mr. Raphael Burke, or agents on behalf of him or his political party, ever request a donation from you or a company in which you are, or were, involved? If so, how much was requested and was this request made before or after the awarding of the local radio licence to 98 FM?

ANSWER: No.

8. Did you ever feel that Mr. Raphael Burke, or agents on behalf of him or his political party, ever insinuated that if he made a donation to either him or his political party, the application for a radio licence for 98 FM would be favourably considered?

ANSWER: No.”

5. The article went on to refer to the possible political implications of the allegation being made against the plaintiff and concluded:-

“Denis O’Brien, the man who is alleged to have made the latest £30,000 donation, is no stranger to political controversy. His hugely successful mobile phone company, Esat Digifone, beat off heavy international

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competition to win Ireland’s second mobile telephone operating licence which was awarded by disgraced former Minister Michael Lowry in 1996. “The decision on the granting of licences was taken despite the fact that no official memorandum was ever taken to the Cabinet Meeting that was chaired by then Taoiseach John Bruton.

“However, a number of investigations carried into the awarding of the licence uncovered no impropriety.”

6. The article also gave details of Mr. O’Brien’s career and stated that the awarding of the licence to Esat Digifone would be examined by the Tribunal of which the sole member is Moriarty J. and which is at present investigating certain payments to politicians. It concluded, however, that


“Mr. O’Brien is confident the decision will stand after four previous investigations failed to turn up wrong doing.”

7. The plaintiff thereupon instituted these proceedings claiming damages for libel and pleading that the words meant, and were understood to mean, that


“(a) the plaintiff had paid a sum of money, described as £30,000, to Mr. Raphael Burke when he, Mr. Burke was a member of the government,

(b) the plaintiff paid the said money by way of a bribe to the said Mr. Burke,

(c) the plaintiff paid the said money for the purpose of securing benefits for himself and his business enterprises,

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(5)

(d) the plaintiff paid the said money for the purpose of securing a licence to broadcast for a radio station known as 98 FM,

(e) the plaintiff obtained benefits, including the said licence to broadcast, by corrupt means,

(f) the said radio licence was awarded to the plaintiff and his company on foot of the said alleged payment to Mr. Burke,

(g) the plaintiff had engaged in corrupt behaviour which warranted investigation by the tribunal established by resolution of the Houses of the Oireachtas and of which the sole member is the Honorable Mr. Justice Fergus Flood of the High Court,

(h) the investigation referred to in the next preceding paragraph would result in the uncovering of corrupt practices by the plaintiff on his own behalf and on behalf of his commercial companies,

(i) the plaintiff secured, or was instrumental in securing, a licence for the company, Esat Digifone, in circumstances which gave rise to suspicion of corrupt practices,

(j) the plaintiff was and is guilty of criminal conduct,

(k) the plaintiff’s conduct and behaviour warrants investigation by the appropriate legal authorities,

(l) the plaintiff should be prosecuted, tried and convicted of corruption and should suffer the full penalty of the law,

(m) the plaintiff is not fit or worthy to hold his position in the business community or the companies of which he is chairman.”

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8. In their defence, the defendants denied that the words complained of bore or were understood to bear or capable of bearing these meanings. They pleaded that the words complained of meant or were understood to mean that an anonymous letter had been sent to the Flood Tribunal making the allegation in question, that the Flood Tribunal would investigate the allegation and that the award of a mobile telephone licence to Esat Digifone had previously been investigated without any impropriety being found. To that extent, they pleaded that the words complained of were true in substance and in fact.


9. The action came on for hearing before McGuinness J. and a jury in the High Court. The following questions were left to the jury:


“In its natural and ordinary meaning or by way of innuendo does the article mean

(1) that the plaintiff had paid £30,000 to Mr. Raphael Burke then a member of the Government by way of a bribe?

(2) that the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM?

(3) that the licence for the radio station 98 FM was awarded to the plaintiff and its company on foot of the said alleged payment to Mr. Burke?

(4) that the plaintiff secured a licence for the company Esat Digifone in circumstances which give rise to a suspicion of bribery or corrupt practices?

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(5) that the plaintiff had engaged in corrupt practices which warranted investigation by the Flood Tribunal?

If the answer to any of the questions 1 -5 is yes, assess damages.”

10. The jury answered each of the questions 1 - 5 in the affirmative and assessed damages at £250,000. Judgment was accordingly entered for that sum and costs. The defendants have now applied to this court, by way of appeal, for an order setting aside so much of the verdict as assessed the damages at £250,000 and ordering a new trial of the action on this issue or, in the alternative, substituting a lower amount for the amount of £250,000.


11. The plaintiff has cross appealed against the refusal of the learned trial judge to leave the issues of aggravated, punitive and/or exemplary damages to the jury and has sought the assessment by this court of such damages or, in the alternative, in the event of an order directing a retrial, an order that these issues be also tried by the jury. He has also appealed against an order of the learned trial judge making no order as to the costs of a previous trial and seeks an order awarding him the costs of that trial.


12. The grounds set out in the defendant’s notice of appeal can be summarised as follows:-


(1) that the damages awarded were excessive;

(2) that the appropriate test for determining whether the assessment of damages by a jury should be set aside is whether the assessment was one

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which a reasonable jury would have thought necessary to compensate the plaintiff and re-establish his reputation;

(3) alternatively, that the size of the award was one which no reasonable jury could have made in the circumstances of the case and was so unreasonable as to be disproportionate to the injury done to the reputation of the plaintiff;

(4) that the learned trial judge misdirected the jury on the issue of damages in that counsel ought to have been permitted to refer and the judge ought to have referred

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

(b) by way of comparison, to compensation scales in personal injury cases and previous libel awards made or approved by the Supreme Court;

(c) to the level of awards which counsel and the trial judge respectively considered to be appropriate;

(5) that the rules of law or practice restraining counsel and the trial judge in defamation trials from offering guidance of this nature are inconsistent with the provisions of the Constitution;

(6) that the size of the award was a violation of the legal and constitutional rights of the defendant and was an interference with the right of the defendant to freedom of expression in breach of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 40 of the Constitution.

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13. As was made clear in the written and oral submissions on behalf of the defendants, in relying on grounds (4) to (6) above the defendants were inviting this court to depart from its recent decision in De Rossa .v. Independent Newspapers Plc. Supreme Court, 30 July, 1999, unreported. In that case, to which it will be necessary to refer in considerably more detail at a later stage, a majority of the court (Hamilton C.J., Barrington J., Murphy J. and Lynch J.) declined to apply in this jurisdiction the decision of the English Court of Appeal in John .v. MGN Limited [1996] 2 All ER 35 in which it was held that guidance of this nature on the assessment of damages should be given by trial judges to juries. In a dissenting judgment, Denham J. concluded that guidance of this nature should be provided.


14. As to ground (4), it was conceded on behalf of the defendants that the learned trial judge had properly charged the jury in this case in accordance with the law as stated by this court and that no criticism could be made of the directions on law which she gave to the jury.


15. There are, accordingly, five possible issues which arise for consideration:


(1) Having regard to the jurisprudence of this court as to the extent to which it is free to depart from its previous decisions, it should reconsider its decision in De Rossa

(2) If the court does consider itself free to reconsider that decision, whether it should now treat it as wrong in law;

(3) whether, in any event, applying the principles stated in De Rossa and earlier decisions of this court, the jury’s assessment of damages should be set aside;

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(4) whether the trial judge was wrong in law in refusing to leave the issue of aggravated and for exemplary or punitive damages to the jury; and

(5) whether the plaintiff shall have been awarded the costs of the earlier trial.

16. Clearly, if the defendants’ appeal is successful in relation to both (1) and (2) above, that, of itself, will require the setting aside of the jury’s verdict.


Stare decisis in the Supreme Court

In Attorney General and Another .v. Ryan’s Car Hire Limited [1965] IR 642 at p. 654, Kingsmill Moore J. explained the new approach being adopted by the court to the rule of stare decisis as follows:-

“However desirable certainty, stability and predictability of law may be, they cannot in my view justify a court of ultimate resort in giving a judgment which they are convinced, for compelling reasons, is erroneous. Lord Halsbury himself [in London Street Tramways Company .v. London County Council [1898] AC 375] was forced to make some modification. Faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was subsequently discovered to have been repealed, he suggested that it would not be a binding authority because it was founded on a mistake of fact. The same reasoning would be applicable if the decision were given in ignorance of an earlier authority of compelling validity. Where a point has been entirely overlooked or conceded without argument, the authority of a decision may be weakened to vanishing point.

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In my opinion, the rigid rule of stare decisis must in a court of ultimate resort give place to a more elastic formula. Where such a court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases. What are exceptional cases? I have already given some examples of cases which I would consider exceptional, but I do not suggest that these closed the category and I do not propose to attempt to make a complete enumeration.”

17. Further guidance on the topic is to be found in the judgment of Henchy J. in Mogul of Ireland .v. Tipperary (NR) County Council [1976] IR 260 at p. 272:-


“A decision of the full Supreme Court (be it the pre-1961 or the post-1961 (Court,), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General .v. Ryan’s Car Hire Ltd ., the judgment of the Court gave examples of what it called exceptional cases, the decision in which might be overruled if a later court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions

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such as ‘convinced’ and for compelling reasons’ and ‘clearly of opinion that the earlier decision was erroneous’ that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies....

“We are concerned here with a pure question of statutory interpretation which was fully argued and answered in [ Smith .v. Cavan and Monaghan County Councils [1949] IR 322] after mature consideration. There are no new factors, no shift in the underlying considerations, no suggestion that the decision has produced untoward results not within the range of that court’s foresight. In short, all that has been suggested to justify a rejection of that decision is that it was wrong. Before such a volte-face could be justified it would first have to be shown that it was clearly wrong. Otherwise the decision to overrule it might itself become liable to be overruled. In my opinion, counsel for the applicants have, at most, established no more than that the interpretation for which they contend might possibly be preferred to that which commended itself to the court in Smith’s case. That is not enough. They should show that the decision in Smith’s case was clearly wrong and that justice requires that it should be overruled. They have not

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done so. I would therefore decline the invitation to overrule the decision in Smith’s case.”

18. The court is not in this case concerned with a pure question of statutory interpretation. However, I am satisfied that the observations of Henchy J. in that case should not be confined to cases in which the courts are concerned with the interpretation of a statute. It is, accordingly, necessary to consider the application of those principles, and the statement of the law by Kingsmill Moore J. in the earlier decision, to De Rossa .


Rossa .v. Independent Newspapers Plc.

19. The plaintiff in that case brought proceedings for libel arising out of an article published in the Sunday Independent which he said meant, and was understood to mean, that he was aware of criminal activities of a serious nature on the part of a political party of which he was the leader and had tolerated those activities. At the time the article was published, the plaintiff was engaged in negotiations with leaders of other political parties with a view to participating in a proposed coalition government, a fact which was referred to in the article itself. In their defence, the defendants admitted that the words complained of meant that the plaintiff was now the leader of a party which had previously received funds raised as a result of criminal activities, but, save to that extent, denied that words complained of bore, or were capable of bearing, the meanings assigned to them by the plaintiff.


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20. There were three trials of the action. The first lasted eight days, at which stage the jury were discharged because of the actions of the defendants. The second trial lasted fifteen days and resulted in a disagreement by the jury. The third trial lasted eleven days. During the course of each of the trials, the plaintiff was subjected to what were described in the judgment of Hamilton C.J. as

“immensely prolonged and hostile cross examinations”
by counsel for the defendants.

21. The following questions were submitted to the jury and answered by them as follows:-

“1. Do the words complained of mean -

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

ANSWER: Yes

(b) that the plaintiff personally supported anti-semitism and violent communist oppression

ANSWER: Yes

2. If the answer to 1. or any part thereof is ‘yes’ assess damages

ANSWER: £300,000.”

22. The defendants appealed against the assessment of damages by the jury. On the hearing of the appeal, it was conceded on their behalf that the trial judge had directed the jury in accordance with the generally accepted practice, but it was submitted that this was a practice which was inconsistent with the provisions of the Constitution and of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was submitted that, in order to bring the law into conformity with the


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23. Constitution and the Convention, specific guidelines should be given by the trial judge and counsel to the jury in defamation actions and that they should include


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

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

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

24. The defendants relied in support of those submissions on the decision of the English Court of Appeal in John .v. MGN Ltd . and of the Court of Human Rights in Tolstoy Miloslavsky .v. The United Kingdom, [1995] 20 EHRR 442.


25. The arguments advanced in that case, on behalf of the defendants, were, accordingly, virtually identical with those advanced on behalf of the appellants in the present case. In a lengthy written judgment with which Barrington J., Murphy J. and Lynch J. agreed, Hamilton C.J., having cited in full the relevant provisions of the Constitution and the Convention and cited extensively passages from earlier judgments of this court, of the Court of Appeal and House of Lords in England and of the Court of Human Rights in Tolstoy, concluded that the existing practice was not inconsistent with the Constitution or the Convention and that the guidelines proposed by the English Court of Appeal should not be adopted in this jurisdiction. He went on to deal with the alternative argument on behalf of the appellants - that the award of damages was in any


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event excessive - and concluded that the damages, although substantial, were not disproportionate to the injury suffered by the plaintiff and that the award should not be set aside.

26. In a dissenting judgment, Denham J., who also reviewed at some length the relevant authorities in this and other jurisdictions, concluded that the guidelines recommended by the Court of Appeal in John should be adopted in this jurisdiction. She was also satisfied that, in any event, the award of damages in that case was excessive and, on principles of reasonableness and proportionality, would have reduced it to £150,000.


27. It was not suggested by counsel for the appellants in the present case that the majority decision in De Rossa was given in ignorance of an earlier authority of compelling validity or that a relevant point had been entirely overlooked or conceded without argument. The decision was, however, criticised on two grounds.


28. First, it was submitted that, although the decision of the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom , which had been strongly relied on on behalf of the defendants in that case, was discussed in the judgment of Hamilton C.J., the judgment had insufficient regard to some important features of the decision and in particular to paragraphs 46 to 51 inclusive of the judgment.


29. Secondly, it was submitted that, while the judgment also considered the decision of the Court of Appeal in John, it proceeded on what was said to be the erroneous basis


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that the criteria laid down by this court in Barrett .v. Independent Newspapers Limited [1986] IR 13, for determining whether an award of damages in a defamation action by a jury should be set aside on appeal were consistent with the requirements of Article 10 of the Convention and Article 40.6.1 of the Constitution.

30. In considering these criticisms, it is necessary to refer at the outset to Tolstoy. The plaintiff in the proceedings which gave rise to the case in the European Court, Lord Aldington, had been awarded damages for libel of £1,500,000 by a High Court jury. The defamatory statements appeared in a pamphlet written by the applicant and it was not in issue in that court that the defamation was of so serious a nature as to justify a very substantial award of damages.


31. The first ground of challenge to the award in the European Court was that the law in England as to the respective roles of the judge and jury in libel actions was such that it would have been impossible for his legal advisers to predict that an award of these dimensions would have been made and that, accordingly, the interference with the applicant’s right to freedom of expression which the award constituted was not “prescribed by law” within the meaning of Article 10(2) of the Convention. This argument was rejected by the court.


32. The second ground of challenge was that the interference with the plaintiff’s right to freedom of expression constituted by the award was not “necessary in a democratic society” within the meaning of Article 10.2, since the amount of the damages awarded was disproportionate to the legitimate aim of protecting Lord Aldington’s


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reputation or rights. The applicant relied on the fact that, since the award in the instant case had been made, the Court of Appeal itself had decided in Rantzen .v. Mirror Group Newspapers (1986) Ltd. [1993] 4 All ER 975, that the existing law allowed too great a latitude to the jury. The European Court upheld the applicant’s challenge on this ground.

33. In the course of the judgment, the court, having observed that the approach adopted in the different Contracting States in this area may differ greatly from one state to another and that the competent national authorities, being better placed than the European Court to assess the matter, should enjoy a wide margin of appreciation, summed up their conclusions as follows:-


“49. On the other hand, the fact that the applicant declined to accept Lord Aldington’s offer to settle for a lesser sum does not diminish the United Kingdom’s responsibility under the Convention in respect of the contested damages award.

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

“The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord

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Aldington. The sum awarded was three times the size of the highest libel award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantive national law applicable at the time fails itself to provide a requirement of proportionality.

“50. In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case, Rantzen . v. Mirror Group Newspapers Limited the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood -required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge should give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal taken under s. 8 of the Courts and Legal Services Act, 1990 would establish some standards as to what would be ‘proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaintiff had suffered and was a sum which was

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necessary to award him to provide adequate compensation and to re-establish his reputation.”

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

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

34. In his judgment in De Rossa Hamilton C.J., having cited in full the passage I have just quoted from the judgment of the court in Tolstoy, summarises the effect of the passage as follows:


“It is clear from the foregoing that the primary reason for the court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.”
“The court gave approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen’s case.”

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(21)

35. I find it difficult to understand, in the light of that passage, how it can seriously be suggested that the judgment of the learned Chief Justice in De Rossa rested on any misunderstanding whatever as to the nature of the decision in Tolstoy.


36. As to the second ground of criticism, it is certainly the case that, having set out in full the observations of Henchy J. in Barrett .v. Independent Newspapers Ltd. in which he made it clear that the test for determining whether an award should be set aside as being excessive was whether it was so disproportionately high that it should not be allowed to stand, Hamilton C.J. went on to say:


“The obligations arising from the provisions of the Constitution and the Conventions are met by the law of this State which provides that the award must always be reasonable and fair and bear a due correspondence with the injuries suffered and by the requirement that, if the award is disproportionately high, it would be set aside.”

37. It is clear that, in arriving at that view, the learned Chief Justice was influenced by the fact that, as is beyond argument, two factors determined the outcome of the decision in Tolstoy, i.e. the size of the award and the state of the law before Rantzen. If the award had been significantly lower and could be regarded as being proportionate to what was admitted to be a very serious libel indeed, the result might have been different.


38. That is a view of the decision in Tolstoy, with which, of course, issue can legitimately be taken. But that is not what is urged upon us in this case. We are being


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asked to hold that not merely is the carefully considered and reasoned view of Hamilton C.J. wrong: we are being asked to hold that it is so “clearly wrong” that there are now “compelling reasons” why it should be overruled and that, indeed, justice requires that it be overruled.

39. The court, moreover, was invited to overrule the decision less than a year after it was pronounced. There is, of course, no guarantee whatever that, were it to be so overruled, within a relatively short period of time the court might not be persuaded that this decision in turn was “clearly wrong” and must itself be overruled. The stage would have been reached at which the doctrine of stare decisis in this court would have been seriously weakened and the certainty, stability and predictability of law on which it is grounded significantly eroded.


40. In addition, the court is urged to overrule the decision on the ground that, apart altogether from the two criticisms advanced of the reasoning in the majority judgment, the court should in any event have followed the decision of the Court of Appeal in John as to do otherwise would be to fail to give effect to the guarantees of freedom of expression contained in the Constitution and the Convention. The observations I have already made as to the two grounds of criticism apply with equal force to that submission. Having cited extensively from the judgments of the Court of Appeal in Rantzen and John, Hamilton C.J. said:-


“If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages,

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a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages.”

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

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

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

41. The learned Chief Justice went on to express his preference for the conclusion reached in Rantzen’s case to that reached in John’s case on the question as to whether or not references to awards in personal injuries actions should be permitted. The view in the former case had been that they should not be referred to and the learned Chief Justice pointed out that in Cassell and Co. Limited .v. Broome [1972] 1 All ER 801 at


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824, Lord Hailsham L.C. had made it clear that there were serious difficulties in comparing awards of damages for libel with damages for personal injuries.

42. Finally, the learned Chief Justice drew attention to what he considered an important feature of the decisions in Rantzen and John, i.e. that they followed the enactment in England and Wales of s. 8(2) of the Courts and Legal Services Act, 1990 and the introduction of RSC Order 59, r. 11(4) empowering the Court of Appeal for the first time to substitute for the sum awarded by the jury such sum as appeared to the court to be proper. 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.


43. Again, a different view could legitimately be taken from that expressed by Hamilton C.J. and assented to by the majority. However, for the reasons I have already given when considering the first ground of criticism, I have no doubt that that fact of itself could not justify this court in overruling the decision.


44. In my view, accordingly, the appeal in the present case should be dealt with on the basis that the law is as stated in the judgment of Hamilton C.J. in De Rossa . It follows, as was conceded on behalf of the defendants, that the award in this case cannot be set aside on the ground that the learned trial judge did not follow the guidelines laid down by the Court of Appeal in John and directed the jury as to the law in accordance


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with De Rossa . I am satisfied, accordingly, that the appellants cannot succeed in this appeal on the first two issues which I have identified.

Whether the award should be set aside as disproportionately high

45. The second issue is as to whether the award should in any event be set aside, applying the law as laid down in Barrett and De Rossa . In considering that issue, I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett or Hamilton C.J. in De Rossa to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court. No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Cassell and Co. Limited .v. Broome , when drawing the distinction between damages in defamation cases and damages for personal injuries


“What is awarded is ...a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”

46. Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.


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47. The general principle which must be applied is as stated by Henchy J. in Barrett in the following passage:-


“a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It was so disproportionately high that in my view it should not be allowed to stand.”

48. It is accepted that the award of damages in this case, if it is not set aside by this court, will be the second highest award of damages so upheld, the highest being the award in De Rossa . In my view, subject again to the qualifications, I have emphasised, it is legitimate to compare the award in this case with De Rossa for the purpose of determining whether it is so disproportionately high that it should not be allowed to stand.


49. The award can also, in my view, be legitimately compared with the award in McDonagh .v. Newsgroup Newspapers Limited Supreme Court, 23rd November, 1993, unreported, where the article complained of was found by the jury to mean inter alia that the plaintiff, who is a member of the Bar and who had attended an inquest (as an observer on behalf of the Irish government) into the deaths of three members of the Provisional IRA who had been shot by the British Army in Gibraltar, was a sympathiser with terrorist causes. They assessed damages at £90,000. An appeal having been brought to this court on the ground inter alia that the damages were so


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excessive as to require intervention, the court declined to set the award aside. Speaking for the court, Finlay C.J. said:-
“A statement [that the plaintiff was abusing the professional function entrusted to him by his client] and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top of the permissible range is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside.”

50. It should also be noted that, in declining to set aside the award in De Rossa Hamilton C.J. said that:


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

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

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

“Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined

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herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.”

51. In the present case, the article complained of stated that the plaintiff had paid £30,000 to a Government Minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in De Rossa . The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.


52. In this context, a comparison with De Rossa is to some extent at least illuminating. In the latter case, the libel complained of could not have been of a more serious character, alleging, as it did, that the plaintiff supported some of the vilest activities of totalitarian regimes in the twentieth century and was personally involved in or condoned serious crime. On any view, that is a significantly more damaging and


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serious libel than the admittedly serious statements made concerning the plaintiff in the present case. It was moreover made in a newspaper with an estimated readership of over a million people: the Irish Mirror is read by approximately 130,000 people. The plaintiff in De Rossa was a prominent politician who was the subject of particular media attention at the time the libel was published, since the party he led was engaged in negotiations which they hoped would result in their participation in a coalition government. It is acknowledged that the plaintiff in these proceedings enjoys a considerable reputation as a businessman but he would not be as well known to the general public as the plaintiff in De Rossa who, in common with other leading politicians, was the subject of constant media attention. Finally, the plaintiff in De Rossa had to go through three protracted High Court actions in front of a jury before his reputation was finally vindicated by the jury and was subjected to prolonged and hostile cross-examination. In the present case, as in De Rossa a somewhat qualified plea of justification was advanced, but does not appear to have been seriously pursued: indeed, the cross-examination by counsel on behalf of the defendants as recorded in the transcript could hardly be regarded as being particularly prolonged or hostile.

53. A comparison with McDonagh - where, as already noted, the damages were described by Finlay C.J. as being “at the top of the permissible range” - is also of some assistance. The plaintiff in that case, although a member of the Bar in good standing, would, like many other barristers in a similar category, be almost wholly unknown outside the legal profession. In terms of his public reputation, the plaintiff in the present case would undoubtedly enjoy a more extensive reputation with the general public than the plaintiff in McDonagh, but, as I have already indicated, a significantly


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more confined reputation than the plaintiff in De Rossa . As against that, the allegation concerning the plaintiff in that case was at least as serious as, if not more serious than, the allegation concerning the plaintiff in the present case. It must also be borne in mind, of course, that the case was decided seven years ago and that one would have to take into account the effects of inflation since then.

54. Ultimately, however, this case has to be decided having regard to its own particular facts and circumstances. I am conscious of the care which must be exercised by an appellate court before it interferes with the assessment of damages by a jury in a case of defamation, but, having weighed up all the factors to which I have referred, I am satisfied that the award in this case was disproportionately high and should be set aside.


The cross appeal

55. It was submitted on behalf of the plaintiff that the learned trial judge was wrong in not leaving the issue of punitive or exemplary damages to the jury.


56. It is undoubtedly the case that exemplary damages, to use the description now generally in use, may be awarded by a court in an action for defamation. Lord Devlin in his celebrated and much criticised speech in Rookes .v. Barnard [1964] AC 1129, had said that exemplary damages could only be awarded in three limited categories, a view of the law assented to by the other law lords, but not followed in other common law jurisdictions, including Ireland. (See Conway .v. Irish National Teachers Organisation and Others, [1991] ILRM 497.) It has been held in those jurisdictions that the courts are not confined to those three categories.


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57. One of the categories referred to in Lord Devlin’s speech was:-


“Those in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff”.

58. As was made clear by the House of Lords subsequently in Cassell and Co. .v. Broome , a plaintiff in an action for defamation who established that the defendant had published the words complained of because of a calculation that the profits resulting from the publication would exceed any damages he might have to pay would be entitled to exemplary damages since the case would come within this category. Since, as held by this court in Conway .v. Irish National Teachers Organisation , the jurisdiction of the court to award exemplary damages is not confined to the three categories referred to by Lord Devlin, it would follow that there may be other cases in which such damages could be awarded, e.g. where there was an intention to publish defamatory matter which was intended to refer to the plaintiff and which was known to be false. In the case of such a calculated breach of the constitutional right of the plaintiff to his good name, it might well be that, in the light of Conway .v. Irish National Teachers Organisation , a plaintiff would be entitled to exemplary damages. In the present case, there is nothing to indicate that the defendants published the offending article intending to defame the plaintiff and in the knowledge that it was untrue. I am satisfied that the trial judge was, accordingly, correct in her decision not to leave the issue of exemplary damages to the jury.


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Costs of earlier trial

59. The plaintiff also cross appealed against the refusal of the learned trial judge to award him the costs of an earlier abortive trial before O’Sullivan J. and a jury. On the second day of the trial, the trial judge recalled that he had advised one of the companies with which the plaintiff was associated some years before when he was at the Bar. He so informed the parties and counsel for the plaintiff indicated that they had no objection to the trial proceeding. However, the defendants indicated that they were not happy with the trial proceeding before O’Sullivan J. and he discharged the jury. At the conclusion of the trial before McGuinness J. and a jury, counsel for the plaintiff applied for the costs of the abortive trial. The learned trial judge declined to award the plaintiff those costs. I am satisfied that she was in error in so doing. The collapse of the first trial was not in any way the responsibility of the plaintiff and he was in no different position than if the jury had disagreed in that trial. I am, accordingly, satisfied that the defendants must pay the costs of the first abortive trial.


Conclusion

60. I would allow the appeal and order a new trial on the issue of damages only. I would dismiss the cross appeal, save in relation to the costs of the trial before O’Sullivan J. and a jury. I would vary the order of the High Court and order that the defendants pay the costs of the trial before O’Sullivan J. and a jury.


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THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
GEOGHEGAN J.
O’HIGGINS J.
289/99
BETWEEN:
DENIS O’BRIEN
Plaintiff/Respondent
AND

MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY
Defendants/Appellants

Judgment of The Hon. Mrs. Justice Denham delivered the 25th day of October, 2000.

1. Appeal

61. This is an appeal by Mirror Group Newspapers Limited, Piers Morgan, Neil Leslie and Karl Brophy, the defendants/appellants, hereinafter referred to as the defendants, from the order of the High Court made on 11th November, 1999 which assessed and awarded damages for libel payable to the plaintiff/respondent, hereinafter referred to as the plaintiff, at £250,000. Thus it is an appeal on quantum only.


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2. Jury determination on newspaper article

62. This case arose out of an article which appeared in the Irish Mirror on 10th June, 1998. The action was heard before a judge and jury. The jury determined that the article meant:


(a) That the plaintiff had paid £30,000 to Mr. Raphael Burke, then a member of the government, by way of a bribe;

(b) That the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM;

(c) That the licence for the radio station 98 FM was awarded to the plaintiff and his company on foot of the said alleged payment to Mr. Burke;

(d) That the plaintiff secured a licence for the company ESAT Digifone in circumstances which give rise to a suspicion of bribery or corrupt practices;

(e) That the plaintiff had engaged in corrupt practices which warranted investigation by the Flood Tribunal.

63. The jury assessed damages for the plaintiff at £250,000 and judgment was entered for that amount and costs. From that assessment the defendants appealed.


3. Grounds of Appeal

64. The grounds of appeal of the defendants were:


(a) That the damages were excessive;

(b) That the correct test by which the Supreme Court should determine whether to interfere with the award of a jury in a defamation action is to assess whether the award was one which a reasonable jury could have thought necessary to compensate the respondent and to re-establish his reputation, and that by this test the damages were excessive;

(c) In the alternative, that the size of the award was one which no reasonable jury could have made in the circumstances of the case and was so unreasonable as to be disproportionate to the injury done to the reputation of the respondent and that the damages were excessive;

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(d) That the learned High Court Judge misdirected the jury on the issue of damages;

(e) That counsel ought to have been permitted to refer and that the judge ought to have referred, to the purchasing power of any award which the jury might be minded to make, and of the income that it would produce;

(f) That counsel ought to have been permitted to refer, and that the judge ought to have referred, by way of compensation to the conventional compensation scales and personal injury cases and to previous libel awards made or approved by the Supreme Court;

(g) That counsel ought to have been permitted to refer, and that the judge ought to have referred, to the level of award which they might respectively consider to be appropriate;

(h) That the supposed rule of law or practice restraining counsel and the judge in defamation trials from offering specific guidance as to the appropriate level of general damages is inconsistent with the provisions of the Constitution, and in particular Article 40.3 and/or Article 40.6.1(i) thereof and that accordingly it had not continued in force, as part of the law, by the provisions of Article 50 of the Constitution;

(i) That the limited scope of judicial control at the trial on the issue of damages was a violation of the legal and constitutional rights of the appellants;

(j) That the size of the award was a violation of the legal and constitutional rights of the appellants;

(k) That the verdict of the court constituted an interference with the right of the appellants to freedom of expression, to an extent greater than was necessary in a democratic society for the protection of the reputation of the respondent and was accordingly contrary to Article 10 of the European Convention of Human Rights and the law of Ireland.

4. Cross-Appeal

65. The plaintiff has cross-appealed seeking orders that the learned trial judge erred in refusing to allow the jury decide on the issues of aggravated or punitive or exemplary damages. Further, he has cross-appealed seeking an order for the costs of the previous trial.


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5. Defendants’ Submissions

66. The defendants acknowledged that many of the grounds raised in the Notice of Appeal were considered and rejected in a majority decision of the Supreme Court in De Rossa v. Independent Newspapers Plc. Supreme Court, 30th July 1999, unreported, hereinafter referred to as De Rossa . The defendants submitted that that decision was in part incorrect and ought to be revisited; that the award of £250,000 was made without adequate safeguards and that it constituted a breach of the defendants’ rights under Article 40.6.1 .i of the Constitution. Further, it was submitted that, while the European Convention on Human Rights is not part of domestic law, the rights protected by Article 10 of the European Convention are, for the most part, rights protected by Article 40.3.1 and 40.6.l.i of the Constitution. Also, that the limitations on exercise of those rights, the interest of the common good, correspond largely to the limitations expressly permitted by Article 10 of the Convention. Consequently, it was submitted, the starting point for a consideration of the appropriate balance between the quantum of damages for defamation and the right to freedom of expression is Tolstoy Miloslavsky v. U.K. [1995] 20 EHRR 442, hereinafter referred to as Tolstoy. The defendants submitted that the Supreme Court should reconsider its decision in De Rossa and they argued for a different conclusion in law. In the alternative or in addition, it was submitted that the award made by the jury was excessive. It was argued that the awards in De Rossa and this case are simply incompatible, unreconcilable and could not form part of any rational system of compensation as envisaged under the Constitution. To seek to reconcile such awards is to clothe the body of a series of random and arbitrary jury awards with the raiment of a rational scheme of compensation for libel.


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6. Plaintiff’s Submissions

67. The plaintiff submitted that the only real issue on the appeal is whether a reasonable jury could have awarded the sum of £250,000 to the plaintiff in the circumstances of the case. It was submitted that the size of the award in damages was in every way commensurate with the extreme seriousness of the particular libel and the major coverage which it was given. The libel went to the very essence of the plaintiffs worth both as an individual and as a businessman. It was submitted that the Irish law of libel represents a fair, logical and constitutional approach to the balancing of competing objectives, of the right of freedom of expression and of that of the individual citizen to his good name. In every respect the law is in accordance with Article 10 of the Convention of Human Rights and has not ever resulted in an award of damages of the size which has been suggested by the Court of Human Rights to represent an impermissible restriction on the right of freedom of expression. It was submitted that the libel in this case was of the highest category of prominence, seriousness and reckless irresponsibility having been published on no greater information that that contained in an anonymous letter and in face of unqualified denial by the plaintiff. It was submitted that whilst it is not in general a useful exercise to compare one libel with another this was one which had the capacity to create enormous damage on the plaintiff who was compensated no more than reasonably by the award of damages by the jury.


7. Following Precedent

68. Decisions of the Supreme Court are final: Article 34.4.6 of the Constitution of Ireland, 1937. The Supreme Court follows previous decisions of its court. This is a policy for the purpose of maintaining continuity and certainty in the law. However, there are exceptions to the rule. These were described in State (Quinn) v. Ryan [1965] IR 70 by


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Walsh J. at p. 127:

“That is not to say ... that the court would depart from an earlier decision for any but the most compelling reasons. The advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding, unalterable rule.”

69. The matter was further analysed in Attorney General v. Ryan’s Car Hire Ltd. [1965] IR 642. Kingsmill Moore J. stated at pp. 653-4:


“The law which we have taken over is based on the following of precedents and there can be no question of abandoning the principle of following precedent as the normal, indeed almost universal, procedure. To do so would be to introduce into our law an intolerable uncertainty. But where the Supreme Court is of the opinion that there is a compelling reason why it should not follow an earlier decision of its own, or of the courts of ultimate jurisdiction which preceded it, where it appears to be clearly wrong, is it to be bound to perpetuate the error?

In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases.”

70. Thus, a previous decision of the Supreme Court may not be followed by the Supreme Court if it is determined that it was erroneous, if there is a compelling reason, or there are compelling reasons, not to follow the earlier decision. Precedent is followed save for exceptional cases. Thus, it is necessary to apply this test to the De Rossa case. It is necessary to determine if De Rossa should be followed or if exceptional circumstances exist so that the case should not be followed.


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8. Tolstoy

71. A fundamental plank of the De Rossa decision of the Supreme Court was the Tolstoy decision of the European Court of Human Rights. In the De Rossa judgment emphasis is laid on the Tolstoy judgment. The applicant in Tolstoy succeeded in his claim that the award of damages was contrary to Article 10. The Court held at paragraphs 46-51:


“C. Were the award and the injunction ‘necessary in a democratic society’?

1. The award.
46. The applicant and the Commission were of the view that the amount of damages awarded --1.5 million -- was disproportionate to the legitimate aim of protecting Lord Aldington’s reputation or rights. The applicant pointed out that, at the relevant time, judicial control over the award of damages in defamation cases had been insufficient to ensure that such awards were proportionate.

47. The Government maintained that there was a reasonable relationship of proportionality between the amount of the award and the aim of compensating the damage done to Lord Aldington and restoring his reputation. They pointed out that Article 10 imposed ‘duties and responsibilities’. The applicant’s pamphlet had been false and unfair and had been expressly designed to provoke a libel action. Although no reasons had been given by the jury, it was, as noted by the Court of Appeal, obvious that the jury awarded so large a sum by way of damages because of the enormity of the libel. The Court of Appeal had been satisfied that the award of £1.5 million had been a rational response by the jury to the exceptional circumstances of the libel which they were considering. Otherwise, as amply demonstrated by its ruling in Sutcliffe v. Pressdram Ltd. the Court of Appeal would have been able to set the award aside and order a new trial.

The Government further submitted that in the Court of Appeal’s opinion the jury had received a very full direction from the trial judge. Moreover, as explained by the judge to the jury, it would have been inappropriate and unhelpful to the jury for him to refer to other cases, because the facts and circumstances were so different, or refer to specific sums of money, since the quantum of damages was exclusively a matter for the jury.

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In addition, before the High Court both counsel for the applicant and the applicant himself had acknowledged that if Lord Aldington won his appeal action, he must receive a very substantial sum. In the Court of Appeal the applicant had been unconcerned about the size of the damages award and he had earlier declined Lord Aldington’s offer to accept £300,000. The offer remained open and the applicant could at any time reduce his liability by £1.2 million if he really wished to do so.

48. The Court recalls at the outset that its review is confined to the award as it was assessed by the jury, in the circumstances of judicial control existing at the time, and does not extend to the jury’s finding of libel. It follows that its assessment of the facts is even more circumscribed than would have been the case had the complaint also concerned the latter.

In this connection, it should also be observed that perceptions as to what would be an appropriate response by society to speech which does not or is not claimed to enjoy the protection of Article 10 of the Convention may differ greatly from one Contracting State to another. The competent national authorities are better placed than the European Court to assess the matter and should therefore enjoy a wide margin of appreciation in this respect.

49. On the other hand, the fact that the applicant declined to accept Lord Aldington’s offer to settle for a lesser sum does not diminish the United Kingdom’s responsibility under the Convention in respect of the contested damages award.

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

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

50. In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been

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made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case Rantzen v, Mirror Group Newspapers Ltd . the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law - if properly understood - required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge could give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act, 1990, would establish some standards as to what would be ‘proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaintiff had suffered and was a sum which it was necessary to award him to provide adequate compensation and to re-establish his reputation.

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

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

For these reasons THE COURT

1. Holds unanimously that the award was ‘prescribed by law’ within the meaning of Article 10 of the Convention.
2.. Holds unanimously that the award, having regard to its size taken in conjunction with the state of national law at the relevant time was not ‘necessary in a democratic society’ and thus constituted a violation of the applicant’s rights under Article 10.”

[emphasis added]

72. Thus, the court held that the award of damages was a breach of Article 10 of the European Convention on Human Rights. This decision was based on the size of the


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award and the lack of adequate and effective safeguards against disproportionality in the national law, that is the law of England and Wales, at the time.

9. Rantzen and John

73. At the relevant time in England and Wales the decision of Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 , hereinafter referred to as Rantzen had not been handed down. Nor had that of John v. M.G.N. Ltd. [1996] 2 All ER 35 , hereinafter referred to as John.


10. De Rossa

An issue in De Rossa was whether the court should give further guidelines to the jury as to the assessment of damages. This was decided in the negative. Hamilton C.J., referring to the Tolstoy decision, held:

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

74. He referred to the fact that the European Court had given approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 and as extended in John v. M.G.N. Ltd. [1996] 2 All ER 35. Of the changes introduced by these cases, he held at p.44:


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

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75. On the issue of guidelines on the award of damages to the jury he referred at p.47 to the concepts of balancing and proportionality required:


“The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name ( Hynes - O’Sullivan v. O’Driscoll [1988] IR 436 [1989] ILRM 349). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”

76. Hamilton C.J. pointed out that the only remedy to a person whose good name had been damaged was an action for damages, reference was made to Barrett v. Independent Newspapers Ltd. [1986] IR 13, pp. 23 and 24. It was held that neither the Constitution nor the European Convention requires that guidelines be introduced, that the guidelines introduced in England and Wales were a development of common law. Hamilton C.J. held:


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

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

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

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77. In a dissenting judgment I expressed the view that juries should be given further guidelines, including information, for example, on previous libel awards confirmed or determined by the Supreme Court, on the level of damages in personal injury cases and on the level of award deemed appropriate by parties. This would aid a jury in arriving at a reasonable and proportionate decision on the assessment of damages. Guidelines would inform the jury. Further, guidelines would be a protection against disproportionate awards.


11. Compelling Reasons

78. The decision of the majority in De Rossa sets out the law. The defendants have asked the court not to follow the De Rossa decision. The first query is as to whether the decision was erroneous. As is clear from my dissenting judgment in De Rossa I held a view contrary to the majority of the court. However, that of itself is not sufficient to determine that De Rossa should not be followed. To disagree with a decision is not sufficient to invoke the exception to the policy of the court to follow precedent. It is necessary also to determine if there exists a compelling reason not to follow De Rossa .


79. The matters at issue are important in a democracy. The right to communicate, the right to information and the right to freedom of expression, guaranteed by Article 40.3.1 and 40.6.1(i) of the Constitution of Ireland, are similar to the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The rights guaranteed in the Irish Constitution are not absolute, neither are the rights of the European Convention. Both documents require that a balance be achieved and that balance going to matters of reputation, information, communication and the freedom of expression is a matter of importance in a democracy and is of public interest.


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80. The facts of this case raise different circumstances. While once again in this case a balance is sought to be achieved between the plaintiffs right to his good name, as protected in the law of defamation, and the right of freedom of expression, the circumstances are not the same. The issue is quantum. However, quantum can not be considered in a vacuum. The facts of the case are relevant. The facts of this case raise a different scenario.


81. There should be a rational relationship between schemes of awarding damages. To have payments for damage to reputation grossly in excess of payments for serious personal injury raises for consideration the rationale of both schemes for awarding damages. Indeed, if the amount awarded in damages in defamation cases exceeds greatly the amounts awarded in general damages for severe personal injuries it has the appearance of punitive damages. This fundamental issue - the rationale for the level of awards of damages - is important.


82. In the kernel of the De Rossa decision is an analysis of the European Convention and decisions referred thereto. The European Convention for the Protection of Human Rights and Fundamental Freedoms is not part of the domestic law of Ireland: In Re O’Laighléis [1960] IR 93. However, decisions of the European Court of Human Rights on the said European Convention may be persuasive authority in the analysis of similar constitutional rights, in the same way as decisions of other constitutional courts: Norris v. Attorney General [1984] IR 36, Henchy J. at p.69. It was determined in De Rossa that the existing practice in Ireland were not contrary to the Convention. The defendants submit that the decision was partially in error. The nub of the defendants’ submission is that the Irish practice rule violates Article 10 of the Convention. In light of the current practice whereby decisions of the European Court of Human Rights may have persuasive authority on issues where the Convention and Constitution are similar, in light of the fact that Ireland was one of


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the original states which ratified the Convention (with consequent effect on policy), and in light of the declared intention of the Irish Government to incorporate the Convention into the domestic law of Ireland, the law of the Convention has a persuasive relevance. Consequently, a cogent argument that there was error in part in its interpretation is significant and a compelling reason to reconsider the issue.

83. The defendants submitted that there should be a departure from the previous decision of the Supreme Court in De Rossa . It was argued that while in the De Rossa case there was reference to Rantzen that the court had not directed its mind to the relevant and necessary portion of Tolstoy especially the above quoted paragraphs 46-51. It was submitted that the court, while it adverted to Tolstoy, did not direct its mind to the essential elements of Tolstoy. In analysing Tolstoy it appears that the earlier common law of England and Wales was considered to be contrary to the European Convention. It appears to me that there is considerable similarity to Irish law now and the law of England and Wales prior to the decisions in Rantzen and John. Consequently there is a real issue as to whether the scope of judicial control at the trial and on appeal offers adequate and effective safeguards against disproportionately large awards of damages. It thus raises the issue as to whether there is a breach of the Convention. In all the circumstances it is appropriate that the matter be reopened, reanalysed and reassessed.


84. At the core of the issues in this case is a decision of a jury. A modern jury brings its own common knowledge to the decisions. It decides whether the statement is a libel. That is not in contest on this appeal. That is the most important decision of the jury -as to whether it is a libel or not - and that decision is solely for the jury. The jury decided also on the amount of damages. At issue is whether on this latter decision further information and guidance should be given to the jury. As with other aspects of juries, their decisions


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should be reviewed in a modern context. I am satisfied that it is wholly appropriate that the issue of information and guidelines to juries be reconsidered. This has implications more far reaching than trials on defamation. I am satisfied that this too is a compelling reason to reconsider the De Rossa decision.

85. The discretion of the jury is not limitless. There is the requirement of proportionality in this jurisdiction but it is not assisted by specific guidelines on the assessment of damages. The issue of damages, and rules related thereto, is a matter which may be addressed by the Oireachtas. In the absence of such legislation the court may use its common law jurisprudence to assist the jury and the trial.


86. In conclusion, I am satisfied that there are compelling reasons to reconsider the De Rossa decision. These reasons include: (a) the cogent arguments made by the defendants as to the interpretation and effect of the Tolstoy decision, the analysis in De Rossa the fact that the issue is one of importance in a democracy and is of public interest; (b) the issue of quantum cannot be considered in a vacuum and the facts of this case inform the analysis; (c) there should be a rational relationship between schemes of awarding damages which should be analysed in the context of the award; (d) the issue of principles and guidelines to juries, in the context of complex modern litigation; are all compelling reasons which taken together are sufficient to raise the exception to the precedent rule. For all these reasons I am satisfied that there are compelling reasons to reconsider De Rossa . Such a review after a relatively short time is not barred in the presence of compelling reasons to review the decision.


12. Persuasive Authority

87. There is no necessity to tie analysis to decisions of the Court of Appeal of England and Wales. Persuasive authority may be considered from our constitutional


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viewpoint and from other common law constitutional courts, some of which I referred to in De Rossa as well as decisions of the European Court of Human Rights on the European Convention of Human Rights. Thus, quite apart from Rantzen and John consideration may be given to cases from other common law jurisdictions. For example, in Carson v. John Fairfax (1992-93) 178 C.L.R. 44 Kirby P.’s ruling in the Court of Appeal that on comparison with serious personal injury cases the amount of damages given was excessive and smacked of the punitive was upheld by the High Court. In other words levels of awards in personal injury cases were held to be relevant.

13. Decision on Guidelines

88. As to the substantive issue, 1 remain of the view I expressed in De Rossa . I am satisfied that guidelines to a jury on the assessment of damages are appropriate. At the least, reference could be made to the level of damages in previous libel cases decided by the Supreme Court and to the level of awards in serious personal injury cases, as has been introduced in other common law countries. Such judicial guidelines may be a safeguard against a disproportionate award. In the absence of such guidelines, merely to require the award to be proportionate is an inadequate protection against a disproportionate award.


14. Was it an Excessive Award ?

89. In light of the decision of the majority of this court that it will not depart from the decision in De Rossa and consequently that De Rossa states the law, the next issue is whether the jury’s assessment of damages should be set aside as being excessive. In McDonagh v. News Group Newspapers Limited Supreme Court, 23rd November, 1993, unreported, Finlay C.J. said of an award of £90,000:


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“... it seems to me that though the figure is probably at the top of the appropriate range it is not so great that this court should interfere with it on appeal.”

90. This was a most serious libel, of a barrister, as stated by Finlay C.J.:


“Having come to the conclusion that I must reject the Defendant’s appeal against the answer by the jury to Question 2(d), namely the question as to whether the words were meant and were understood to mean that the Plaintiff was a sympathiser with terrorist causes, I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right-minded people, would be considered significantly more serious. To an extent the seriousness may be somewhat aggravated by the fact that it is an accusation which has been made against a person who has a role, by reason of his profession and by reason of his standing as a member of the Bar, in the administration of justice. With regard to the other meanings which have been accepted by the jury as flowing from the accusations made, they basically constitute in their combined effect an extremely grave accusation of professional misconduct by the Plaintiff. The essence of the function of a lawyer and a member of the Bar is carrying out a task such as that which was assigned by the State to the Plaintiff on this occasion of the inquest, was that he would be rigidly and uncompromisingly honest and independent in his assessment of the proceedings of which he was an observer and that the State could rely completely, as his client, upon what a lawyer must in his ethical code deliver, namely, an honest appraisal of the situation before him, both as a matter of law and as a matter of fact.

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

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

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In the De Rossa case I was of the view that £300,000 was excessive. McDonagh, de Rossa and this case have a similar factor - the applicant has a standing in the community as, respectively, a barrister, a politician and a businessman. All three cases involved very serious defamations.

The McDonagh award was held to be at the top of the permissible range. In De Rossa there were aggravating factors to be considered. Even allowing for the circumstances of this case, it is an award which in my view is beyond the range in that it is so incorrect in principle, it is so disproportionate, that it should be set aside. I leave for another case the matter as to whether it would be open to this court to substitute an award of damages. This is an important issue, especially when awards are held to be excessive and yet no guidelines, as submitted for, are given to the jury.

15. Aggravated, Exemplary and Punitive Damages

91. On the issues of aggravated, exemplary or punitive damages I agree with the Chief Justice. I would not allow the cross-appeal. The trial judge did not err in refusing to leave these matters to the jury.


16. Costs of Previous Trial

92. Costs follow the event. Consequently, if the respondent succeeds he is entitled to costs, including the costs of the first trial.


17. Conclusion

93. I am satisfied that the instructions to the jury on quantum should be altered so as to give a greater degree of guidance and assistance to the jury. Also, that there should be a


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more searching scrutiny, which would include consideration of such guidelines, on appeal to the Supreme Court to ensure that there is maintained the appropriate balance between the rights of the individual and of freedom of expression in a democratic society.

18. Orders

94. I would allow the appeal, determine that there are compelling reasons to reconsider the De Rossa decision, consider guidelines for the jury as to the assessment of damages, determine that the award was disproportionate and excessive and should be set aside, and reserve for another occasion the issue as to whether the Supreme Court could substitute an award of damages on appeal. On the matters raised in the cross-appeal I would dismiss the cross-appeal, except in relation to the costs of the first trial.


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THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
GEOGHEGAN J.
O’HIGGINS J.
289/99
BETWEEN:
DENIS O’BRIEN
Plaintiff/Respondent
AND

MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY
Defendants/Appellants

JUDGMENT delivered the 25th day of October 2000 by Mr Justice Geoghegan

95. The Chief Justice in his judgment has set out in considerable detail both the background facts relating to this case and its procedural history. I adopt his account of these matters and therefore any repetition would be superfluous.


96. In a recent decision of this Court in De Rossa v Independent Newspapers Plc Supreme Court 30th July 1999, unreported, the Court in the form of a judgment per Hamilton C.J. with whom three other members of the Court agreed restated the traditional principles long followed by trial judges in libel actions as to how such a judge should address the jury in relation to the assessment of damages. Specifically the Court disapproved of the decision of the English Court of Appeal in John v MGN Limited [1996] 2 All E.R. 365 that thenceforth guidance should be given by the trial judge to the jury on the assessment of damages in the form of comparison with precedent awards in both personal injury and libel cases and to the purchasing power of a particular award and to the level of awards suggested


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by counsel and the judge himself or herself. In a minority judgment in De Rossa Denham J. expressed the view that such guidance should be given.

97. It has been argued in this appeal on behalf of the Appellant that De Rossa should be reconsidered and that on various grounds as set out in the Chief Justice’s judgment this Court should now depart from it. The Chief Justice has dealt with the submission at some length in his judgment and has formed the view that this Court should not now entertain arguments to the effect that De Rossa was wrongly decided. I am in complete agreement both with the conclusion of the Chief Justice in this regard and his reasons for arriving at such conclusion. There is nothing more which I can usefully add.


98. I therefore now turn to the question of whether the award should be set aside as being disproportionately high. I will start by making a simple comment. In my view this was an extremely serious libel. It is important to consider the context in which the offending article came to be written. First of all the Moriarty and Flood Tribunals were hitting the headlines. Payments to politicians were being investigated. It would be a gross understatement to say that in the mind of the public there was a sniff of corruption in the air. Indeed as McGuinness J. pointed out when conducting the trial and in reference to some discussion about a particular question that was being asked, even payments by companies to political parties were at that stage becoming tainted with corruption in the minds of the public. But the public for the most part would have no knowledge as to the character of Mr Denis O’Brien the Plaintiff/Respondent in this case. Yet at the same time he was well known as a new emerging and major figure in the business world having regard in particular to the considerable controversy surrounding the granting to companies promoted by the Plaintiff of relevant land line and mobile telephone licences placing him through his companies as effectively the only competition to the then Telecom Eireann. These licences were granted by the then Minister


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99. Mr Lowry although there were much larger international companies which had applied for the licences. No matter how many enquiries or investigations there may have been into the granting of these licences and upholding their propriety the Plaintiff who was a relatively “unknown quantity” in the eyes of the public was clearly vulnerable to attacks on his character.


100. Secondly the offending article was published at a stage when the Plaintiff was in the United States of America making exhaustive efforts with different financial institutions to raise the funds necessary for the appropriate investment in the telephonic enterprise. The Plaintiff explained in evidence (which I must assume was accepted by the jury) that he was extremely upset at hearing from Dublin about the questions he was being asked and the obvious intention to write an article and that this upset particularly related to the business sensitivity involved at that time when he was trying to raise money. It is true of course that the evidence established that his business was progressing successfully. But at Question 233 counsel for the Defendants/Appellants suggested to the Plaintiff “quite specifically” that the article had had no effect whatsoever on the growth of his projects and the expansion of his business. The Plaintiffs answer was as follows:


“You are incorrect in that assumption. I would never have had to go to the length of coming to the High Court in Dublin unless I felt that this was absolutely wrong.”

101. It was suggested to the Plaintiff that the Irish Mirror did not have a large circulation and that at any rate the type of person that he would be dealing with in business etc. would not be a reader of that paper. I do not find this argument very convincing though I do accept of course that circulation is a factor which may be relevant in the assessment of damages in a libel action. But as Mr Cooney pointed out in cross-examination and with which I agree the


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contents of a newspaper article may become known to large numbers of people beyond the actual buyers and readers of that paper. In modern times it is common practice for all the different newspapers to be on display usually on a low shelf in a shop. A person who has no intention whatsoever of buying the Irish Mirror may nevertheless look at the main front page headlines. Given the widespread public interest in the Tribunals and the allegations against Mr Ray Burke etc. a front page column that is headed by a photograph of Mr Burke with the words “donation: Ray Burke” written underneath and then a headline in bold type “Burke in new £30, 000 probe” was bound to attract the eye of many customers in shops buying newspapers but who had no intention of buying the Irish Mirror. Furthermore underneath the headline was the word “exclusive” picked out in red.

102. It is true that only part of the article is contained in that front page but if the natural temptation of the browser to say nothing of the buyer of the paper to turn to page 3 was succumbed to it is clear that there were references not merely to the radio licence but to what to my mind was a much more serious matter, the Esat Digifone competition. One of the questions which had been put to the jury by the trial judge was the following:


“In its natural and ordinary meaning or by way of innuendo does the article mean that the Plaintiff secured a licence for the company Esat Digifone in circumstances which gave rise to a suspicion of bribery or corrupt practices?”

103. The jury answered that question as it did to the other four in the affirmative. It is important at this stage again to recall that at the time the article was published the Plaintiff was engaged in the difficult round of negotiations with financial institutions with the crucial aim of raising the necessary investment. I suspect the jury took the view that such an allegation coming at


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such a time and in such sensitive circumstances was of the utmost seriousness and should attract high damages.

104. I have already referred in part to the wider circulation that such an article would have than merely the sales or readership figures of the Irish Mirror might suggest. The Plaintiff himself laid emphasis on the damage to his reputation among his workforce. But there is a still more important factor to which quite clearly from the transcript the Plaintiff attached very considerable significance. As he explained, if you are a “player” in the business or financial world and are trying to attract international investment what is said about you or your companies on the Internet obviously assumes considerable importance. He gave evidence to the effect that there were agencies which gathered newspaper clippings about business enterprises all round the world and that these can very easily find their way into the Internet so that they are read by any person looking into or investigating the enterprise concerned. Counsel for the Defendant/Appellant Mr MacMenamin put it to the Plaintiff that the article was “not even on the Internet” . The Plaintiff was unable specifically to answer the question but he pointed out that there are different data bases for different articles. The trial judge McGuinness J. intervened to ask Mr MacMenamin whether when Mr MacMenamin was suggesting that it was not on the Internet did he simply mean that it was not on the Mirror website. Mr MacMenamin confirmed that that was what he was suggesting namely that it was not on the Mirror website. The Plaintiff when he heard that went on to explain that he did not think the business community looked at the Daily Mirror but that there were newspaper clipping services that go through every newspaper and every article produced all over the world so that when a potential investor goes and looks up the word “Esat” as he put it “the Daily Mirror, the Guardian, the Irish Times, the New York Times all come together.”


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105. Finally towards the end of the cross-examination of the Plaintiff Mr MacMenamin put to him that so far as the level of investment and borrowings are concerned in his various enterprises, that continues unimpeded. The Plaintiff agreed with that. He was then asked whether he had no abnormal anxieties on that score. He answered that he had many anxieties but he was again asked whether he had any abnormal anxieties and his answer to that was as follows:-


“Well, I have an abnormal anxiety as to what people think of an article like this, because it is still an unanswered question.”

106. Given the context in which the libels were published and the contents of the libels the question arises is the award so high that it ought to be set aside? Various formulations of words have been used by appellate Courts in Ireland and England as to when an appellate Court in a libel action can interfere with a jury award. Although the language is sharper and stronger in some cases than in others I am not sure that there was ever any intended difference and I am inclined to think that the form of words adopted by Henchy J. in Barrett v Independent Newspapers Limited [1986] IR 13 is the most helpful. The learned judge stated as follows:


“Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”

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107. One point of interest about this statement of principle is that it is not confined to damages for libel. It is intended as a principle to apply to compensatory damages in all cases. This might at first sight seem difficult to reconcile with the many judicial dicta to the effect that appellate courts will be extraordinarily reluctant to interfere with jury awards in libel actions. Indeed in the Barrett case Finlay C.J. said the following:


“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, while the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, on the basis of excess or inadequacy.”

108. There is no dissent from this view in the judgment of Henchy J. and I doubt very much that the two judges were intending to say anything different. The true principle would seem to be that in all cases of compensatory damages whether in libel or in personal injuries or otherwise an appeal court will not interfere merely because its own judges thought the award too high. The court will only interfere if the award is so high that it is above any figure which a reasonable jury might have thought fit to award. But although that principle is the same in all cases of compensatory damages, the application of the principle will necessarily be different in the case of libel from the case of personal injuries. In the case of personal injuries an appeal court can determine with some confidence what would be the range of awards which a reasonable jury (or nowadays a reasonable judge) might make. This the appeal court can do because although every personal injury case is different from every other personal injury case there are also great similarities. A broken hip case relates to some


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extent at least to every other broken hip case. A loss of an eye case relates to some extent at least to every other case of loss of an eye etc. Members of the court from their experience at the Bar and experience as trial judges and indeed experience of previous similar appeals may with some confidence form a view as to what the legitimate spectrum of awards could be. In the case of a libel appeal however the appeal Court although it has to engage in the same exercise, it can only do so with diffidence rather than confidence. In this connection it is worth quoting again the passage from the speech of Lord Hailsham of St. Marylebone, L.C. in Cassell and Co Ltd v Broome [1972] AC 1027 already cited by the Chief Justice:

“What is awarded is.... a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”

109. It is I think relevant also to cite the passage from the same speech referred to in the written submissions of Counsel for the Plaintiff and Respondent:


“It may very well be that, on the whole, judges and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matters than judges.”

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110. Unlike personal injury cases every libel action is completely different from every other libel action and therefore the guidelines available to an appeal court in settling the reasonable parameters of an award are much more limited.


111. As the Chief Justice has pointed out, one such guideline may well be previous awards approved of by the Supreme Court. But I think that there are problems about over reliance on that criterion. One of the arguments of Hamilton C.J. in his judgment in the De Rossa case against a practice of counsel and the trial judge analysing other comparative libel actions when comparing the awards in them was the sheer practical difficulty of comparison. Before one begins to consider De Rossa or any other comparison it is important in my view that the Supreme Court should thoroughly consider the case before it in isolation of comparisons. If for instance the De Rossa case had never occurred, the mind set of this Court might be very different in viewing the claim of the Plaintiff Mr O’Brien. I have already given reasons why in my view the libels in the offending article were extremely serious from the point of view of the Plaintiff I have little doubt that if it was not for De Rossa , I would have no hesitation about leaving the jury award stand even though it is more than I personally would have awarded. But having regard to the diffidence with which an appeal court should approach the possible setting aside of a jury award in a libel action, I could not have formed the view that the jury award was beyond reason. In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the Plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been


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open to the jury to take the view that they had done so. The award had to be of a level that the Plaintiff would feel reasonably compensated.

112. Interestingly in the course of the opening of the case by Mr Cooney Counsel for the Plaintiff, he referred to the fact that the readership of the Irish Mirror in June 1998 varied between 180,000 and 195,000 people. Exception was taken by Mr MacMenamin Counsel for the Defendants to these actual figures being given to the jury because as he put it “in my respectful submission, that is an attempt by the back door to place numbers into the minds of the jury as regards a level of damages, and I take great exception to that.” Mr Cooney in response commented as follows:


“I understand his apprehension. I think effectively what Mr MacMenamin is afraid of is that the jury would come back and award somewhere between £180,000 and £195, 000. That is a danger which may be there. It may be removed by what Mr MacMenamin would say to the jury in his closing and more particularly, what you would say was in order that is that the level of damages is a matter for the jury.”

113. It would be unfair to draw any inference from this little bit of unusual dialogue that Mr Cooney was conceding that figures in that order were excessive but even if such an inference could be drawn it would be irrelevant. For the very same reason that it is difficult for an appeal court to arrive at a correct level of damages for libel it is almost impossible for counsel for the Plaintiff to make any worthwhile prediction.


114. As I have already indicated, I have come to the conclusion that if I do not have to consider De Rossa I would not concur with this Court interfering with the award. However De Rossa undoubtedly presents problems. As the Chief Justice has pointed out, the £300,000 awarded in that case was the highest in this jurisdiction to be approved by the Supreme Court.


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115. He has also summarised in his judgment the extremely serious allegations which were made against the prominent politician Mr Proinsias De Rossa. The Chief Justice has clearly taken the view that the defamation in this case was much less serious and that the discrepancy is so great that if £300,000 was considered by the Supreme Court to be about the most that could have been allowed in De Rossa £250,000 cannot be allowed for Mr O’Brien.


116. I take a somewhat different view. It would seem to me that the two cases are so completely different that worthwhile comparisons are not achievable. It is impossible to know what were the aspects of each individual case to which the respective juries attached importance. I think that in comparing the two cases (if such comparison is relevant at all) one must take serious account of the fact that the allegations in the De Rossa case were essentially all past history. On the other hand the allegations in Mr O’Brien’s case related to his more or less current behaviour. Secondly Mr De Rossa was extremely well known to the public and even in the eyes of his political opponents he had a fine reputation as a parliamentarian. In one sense given his publicly established good reputation it could be argued that it was all the more serious that that should be dented by allegations relating to an alleged criminal and murky past. On the other hand it could also be argued that while the damage was serious and would have to be compensated on a serious basis there would be no substantial danger of permanent injury to his reputation it being so public and well established. Mr O’Brien by contrast was not well known to the public and yet was sufficiently well known as somebody involved in controversy. There would have been no knowledge at all virtually as to his good or bad character and he was at the time of the libels in the process of raising funds for the most important business venture that he had been engaged in. The innuendoes against his good character were liable to be published across the Internet. As a major new entrepreneur on the Irish scene his reputation in the eyes of both the business world and the public in


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general was of the utmost importance to him. I have come to the conclusion that the view I have taken independently of De Rossa ought not to be affected by De Rossa. Still less should it be affected by the award of £90,000 made to the barrister Mr Donagh McDonagh in McDonagh v Newsgroup Newspapers Limited Supreme Court 23rd November, 1993, unreported. Mr McDonagh did not have the public profile of Mr O’Brien and at any rate the award was made seven years ago. I think that when put in the context of the surrounding circumstances the libels in this case were far more serious than in the McDonagh case and I am particularly referring to the libel in relation to corrupt practices in obtaining the Esat Digifone licence. Comparisons in the area of libel are dangerous but if the De Rossa and the McDonagh case are to be referred to I agree with the view of counsel for the Plaintiff and Respondent in their written submissions that the judgment of Campbell-Sharpe v Independent Newspapers (Ireland) Supreme Court, 11th of February, 1998, unreported, should also be taken into account. As counsel points out for a libel to the effect that she had not paid a member of her staff but albeit one which the evidence indicated caused her great upset and for which there was no apology the jury awarded £70,000 and this award was upheld in a trenchant ex-tempore ruling by Hamilton C.J. with which Barrington J. and Lynch J. agreed. It is unfortunate that the transcript of the ex-tempore ruling remains unapproved and it would therefore not be appropriate to cite passages from it but it is quite clear that the three members of the Court unanimously considered that the award made by the jury was fair and reasonable having regard to the circumstances and was not excessive particularly having regard to the absence of an apology.

117. In all the circumstances therefore I would dismiss the appeal.


118. In relation to the cross-appeals I agree with the judgment of the Chief Justice that the cross-appeal in respect of the issue of punitive or exemplary damages should be dismissed for


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the reasons which he gives and I also agree that the cross-appeal relating to the refusal of the learned trial judge to award the Plaintiff the costs of an earlier abortive trial before O’Sullivan J. and a jury ought to be allowed.


© 2000 Irish Supreme Court


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