THE SUPREME COURT
Appeal No. 260/2007
INDEPENDENT NEWSPAPERS (IRELAND) LIMITED
Judgment of Ms. Justice Dunne delivered on the 19th day of December 2014.
The plaintiff/appellant (Ms. Leech) is a married woman with two sons. For a period of time prior to the commencement of these proceedings, she worked as a communications consultant advising the OPW and subsequently, the Department of the Environment. The Minister for the Environment from 2002 until 2004 was Martin Cullen, TD. Ms. Leech became the subject of widespread media coverage around November and December 2004 concerning her work with the Department.
On the 16th December, 2004, RTE Radio 1 broadcast as usual the Liveline programme, a live phone-in programme which involves members of the public phoning in and speaking to its presenter live on radio. That day, a caller to the programme identifying himself as “Norman” made a number of comments on live radio suggesting that Ms. Leech was performing sexual favours for the Minister for the Environment as part of her job. The following day, an article bearing the headline “Gasps and Blushes as Norman turns Joe’s show into Vileline’” appeared in the Irish Independent newspaper published by the defendant/respondent. The article contained an account of the conversation between “Norman” and the presenter of the programme, Joe Duffy, save that in the article some of the words spoken by Norman were edited. It would be useful to refer to a short passage from the article which appeared in the edition of the Irish Independent for Friday, 17th December, 2004:
Joe Duffy, immediately cutting in: ‘We’ll cut the line’. An advertisement break followed.
“During a discussion on the rights and wrongs of her appointment to the
€127,775 - year - job, presenter Joe Duffy took a call from a person who called himself Norman and who said he was from Cork and a member of the Progressive Democrats.
Norman: ‘Well I think Martin Cullen has done a good job. And Monica Leech, for all we know, is not being overpaid at all.’
Joe interjected: ‘Keep defending.’
Norman: ‘We really don’t know what she’s been doing anyway. Maybe she’s been doing other things for him besides constituency work - maybe she’s ‘s.... his c….’.”
Last night, RTE said it disassociated itself from ‘Comments made on today’s Liveline in relation to Martin Cullen and Monica Leech and to apologise for any offence caused’. …”
Ms. Leech issued proceedings claiming damages for defamation against the defendant/respondent (hereinafter referred to as “the Newspaper”) on the 10th February, 2005. Following an exchange of pleadings the proceedings ultimately came on for hearing before a judge and jury on the 26th June, 2007. The proceedings were dismissed on the 28th June, 2007 in accordance with the verdict of the jury which found that:
Grounds of appeal
Ms. Leech has appealed from the verdict of the jury and the order made on foot of the verdict on a number of grounds which can be summarised as follows:
(a) The article did not bear the meaning that the plaintiff, a married woman, had had adulterous relations with Minister Martin Cullen.
(b) The article did not bear the meaning that the plaintiff, a married woman, had performed deeply intimate sexual favours, namely oral sex, for Minister Martin Cullen for the sake of a well paid and beneficial contract.
In order to understand the issues in the case, it is necessary to make some reference to the pleadings. Ms. Leech in the statement of claim pleaded that the article complained of in its natural and ordinary meaning bore the meanings, inter alia, that Ms. Leech had had an extramarital affair with the Minister, that she had had adulterous sexual relations with the Minister and that she had prostituted herself for the sake of a well paid and beneficial contract. The Newspaper in its defence as originally pleaded denied the meanings contended for by Ms. Leech and went on to plead justification as follows:
(a) No reasonable person and in particular Ms. Leech, could believe that the verdict was properly reached in circumstances where it was arrived at on foot of a charge to the jury which the learned trial judge himself accepted was in error.
(b) The trial was, in any event, unsatisfactory as a result of erroneous rulings of the learned trial judge which prejudiced Ms. Leech.
(c) The learned trial judge failed to discharge the jury when he ought to have done so on the request of Ms. Leech.
There was also a plea of fair comment in which the matter of public interest was stated to be the failure by a national broadcaster to prevent the airing of inappropriate material. Finally there was a plea of qualified privilege to the effect that “The material was published on an occasion of qualified privilege pursuant to the Constitution and/or at common law”.
“5. Further or in the alternative, the defendant pleads that the said material, in its natural and ordinary meaning, but not in the meanings pleaded by the plaintiff, was true in substance and in fact.”
The conversation described in the article took place between the presenter and the caller to RTE’s Liveline show. RTE and the presenter reacted in the manner described, and made the statements described, in the article. The balance of the article is also true.”
Arising out of a motion before the High Court (O’Donovan J.) on the 21st November, 2005, an amended defence was delivered containing the following plea of justification:
Thus, when the case came on for trial, the Newspaper relied on defences of justification, fair comment, and qualified privilege.
(a) That a caller to RTE’s Liveline had made offensive remarks about the plaintiff and Martin Cullen and that RTE and the programme’s presenter had immediately apologised for, and disassociated themselves from, those remarks.
In support of the above plea, the defendant relies on the fact that the conversation reported in the article took place and that RTE and the presenter reacted in the manner described and made the statements described in the article. The defendant also relies on the other matters of fact as set out in the article.”
Ms. Leech also brought proceedings against RTE arising out of the broadcast and those proceedings were compromised by Ms. Leech and RTE in terms that an apology to Ms. Leech was read out in court and a substantial sum by way of damages was paid to her. An order was also made for the payment of her costs of those proceedings, to be taxed in default of agreement.
At the commencement of the trial and before the case was opened to the jury, a number of legal issues were canvassed before the learned trial judge. In the course of legal argument it was indicated to the Court on behalf of the Newspaper that it no longer wished to rely on the defence of fair comment.
Secondly, it was made clear that the Newspaper did not wish to put forward the defence of justification as such, rather it was intended to rely on the particulars furnished under the heading of “Justification” in the amended defence to the effect that there had been a broadcast in the terms described and that it had been dealt with by RTE by way of an apology. The net effect was that the action proceeded on the basis that the Newspaper’s defence consisted of a dispute as to the meanings contended for by Ms. Leech together with a plea of qualified privilege.
Thirdly, the learned trial judge made the following ruling:
The case was then opened to the jury on behalf of Ms. Leech. On the following day, before going into evidence, an issue arose as to the status of the “Reynolds” defence of qualified privilege in Ireland (Reynolds v Times Newspaper Ltd. 1999 1 All ER 609) and submissions were heard on that subject. The learned trial judge concluded that there was a public interest or “Reynolds” defence of qualified privilege available in this jurisdiction but he did not wish to rule on the availability of the defence in this case before hearing evidence. It was observed that particulars of that defence ought to have been furnished with the defence but in circumstances where particulars had not been sought by Ms. Leech prior to the trial, he declined to require the Newspaper to formulate such particulars at that stage. During the course of the submissions before the learned trial judge on the issue of the “Reynolds” defence, the Newspaper declined to say whether it would go into evidence in support of that defence.
“We come to the second issue then which is: is the Plaintiff in opening this case to make reference to a large quantity of other material which is in many cases the subject of other litigation by way of saying that the true meaning that the defendant wished to put forward in relation to the article was not one of a report but one of deliberately attacking her character. At the moment I feel that the right thing to do is to simply rule that that matter should not be opened to the jury at this point.”
Following the ruling of the learned trial judge, Ms. Leech commenced her evidence. She described her personal circumstances, her work experience in marketing and communications and how, ultimately, she became self-employed. She explained how she had become acquainted with Mr. Cullen in various capacities, when she worked in local radio and when she was involved in the Waterford Chamber of Commerce particularly in her position as President of the Waterford Chamber of Commerce.
Ms. Leech described how she did a number of jobs for the Office of Public Works when Mr. Cullen was Junior Minister with responsibility for the Office of Public Works. Following the 2002 election, Mr. Cullen became Minister for the Environment. Initially Ms. Leech was offered a short-term contract in relation to the communications needs of the Department. Thereafter, she participated in a full tender process and was successful in obtaining a further contract to work for the Department. She described the nature of her work for the Department.
Ms. Leech explained how she heard the broadcast on Liveline and her reaction to it. The following day she found out about the article in the Irish Independent the subject matter of these proceedings and she told the jury about her reaction to that article.
Ms. Leech was then cross-examined extensively. During the course of the cross-examination, her counsel objected to the breadth of the cross-examination on the basis that it sought to go outside the parameters permissible having regard to the plea of qualified privilege based on the public interest that had been flagged in the course of earlier submissions. Complaint was made that the Newspaper was “pleading justification through the back door”. The learned trial judge permitted the cross-examination of Ms. Leech to continue stating as follows:
Thus the cross-examination continued and in the course of cross-examination a number of points were put to her:
“The issue as to a public interest defence is objected to on the basis that if Mr. McCullough (counsel for the Newspaper) suggests there is some substance to a controversy, that in those circumstances he is in fact pleading justification through the back door. I think the reality in relation to a public interest defence is that it can be wrong, but a matter can be fairly ventilated in the public interest and I think he is entitled to explore that. I therefore do not see that there is anything wrong with the question.”
Ms. Leech was then cross-examined as to the proceedings brought by her against RTE arising out of the comments made by “Norman” on Liveline. Following the cross-examination on that issue, the cross-examination concluded. The following day, an issue was raised by counsel on behalf of Ms. Leech as to her cross-examination on the subject of the settlement of her proceedings against RTE. Section 26 of the Defamation Act 1961 was referred to in this context. An issue arose as to whether in circumstances where reliance was placed on the fact that Ms. Leech had obtained damages from RTE that in order to lead that evidence it was necessary for counsel on behalf of the Newspaper to concede liability. Section 26 provides:
It was suggested to Ms. Leech that there was a concern that the tender process was irregular;
suggested to Ms. Leech that there was a concern that the tender process was contrary to European procedures;
suggested to Ms. Leech that there was a concern that her presence on foreign trips had been irrelevant;
suggested to Ms. Leech that, as the articles stated, a senior civil servant had been appointed to investigate all of these matters.
Counsel for Ms. Leech sought that the Newspaper either admit that the words complained of were to the same effect as the meanings pleaded by Ms. Leech against RTE or if it was contended otherwise, that the jury be discharged. The learned trial judge declined to discharge the jury and said that he would seek the assistance of counsel in relation to the appropriate direction to be given to the jury in relation to the question of damages.
“In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.”
As a result of that ruling, Ms. Leech was re-examined in relation to the settlement of her proceedings with RTE.
The rulings in relation to the breadth of cross examination and as to the refusal of the trial judge to discharge the jury in respect of the s.26 issue are amongst the issues raised in this appeal on behalf of Ms.Leech.
Following the conclusion of the evidence of Ms. Leech on the third day of the trial, it was indicated that the Newspaper would not be going into evidence. There were submissions from counsel as to the effect of not calling evidence on the “Reynolds” defence. The test required to be met before that defence could be relied on, particularly the requirement to establish that the defendant in publishing the article met the standard of responsible journalism, was canvassed. The learned trial judge ruled that in order to establish the “Reynolds” defence, there should have been evidence to establish the steps taken prior to publication which would have amounted to responsible journalism. He ruled that the defence of qualified privilege arising from the public interest could not go to the jury. Accordingly, given that the Newspaper had abandoned its plea of fair comment and justification at the commencement of the trial and was no longer permitted to rely on the “Reynolds” defence, the case went to the jury on the issue of the meaning of the article and damages on the basis of the following questions:
The jury were then asked to assess damages if the answer to No. 1(a) or (b) was yes.
“Did the article of Friday, 17th December, 2004 published by the defendant bear the following meanings or either of them?
(a) That the plaintiff, a married woman, had had adulterous sexual relations with Minister Martin Cullen . . ..
(b) That the plaintiff, a married woman, had performed deeply intimate sexual favours, namely oral sex, for Minister Martin Cullen for the sake of a well paid and beneficial contract . . ..”
The jury’s deliberations
Counsel’s speeches to the jury and the judge’s charge having been concluded, the jury retired at 4.19pm to consider their verdict. Following the learned trial judge’s charge to the jury, counsel for both Ms. Leech and the Newspaper made requisitions in relation to the charge. The Newspaper made a requisition in relation to that part of the charge as to the evidence of meaning. In turn, counsel on behalf of Ms. Leech had a requisition as to the law in relation to a repetition of a libel and the fact that it was not sufficient in repeating a libel to then repeat a disassociation from the libel. The learned trial judge agreed to recall the jury and at 4.28pm the learned trial judge re-charged the jury briefly on the matters that had been raised by way of requisition. The jury went out again at 4.31pm to continue their deliberations.
As pointed out above, complaint has been made in this appeal as to a number of rulings made in the course of the trial but what occurred next gives rise to the main ground of appeal. Some time after the jury had retired to consider their verdict following the re-charge, the Court sat again in the absence of the jury. Apparently the jury had indicated that they had a question and they were also concerned as to how long they were going to be kept deliberating on their verdict. It is not precisely clear at what time the Court sat but it appears from the transcript that the learned trial judge commented “We are close enough to 5.30 now” and he indicated to counsel that he was going to direct the jury at that stage as to a majority verdict.
When the jury returned there was a brief discussion between the learned trial judge and the foreman of the jury as to how much longer the jury would continue on its deliberations that evening. The foreman then asked the question which was troubling the jury - “What does ‘bear the meaning’ mean?” The learned trial judge responded as follows:
The exchange between the learned trial judge and the jury continued with a further question asked this time by another member of the jury:
“Bear the meaning simply means ‘means’. That is all it means.”
The jury then withdrew. Counsel for the plaintiff took issue with the response given and submitted that the word “inference” as explained by the trial judge had a difference use and that the jury were asking if they could draw an inference from the article as a whole or as it was put by counsel:
“It is not could it bear the meaning to carry an inference?”
Mr. Justice Charleton then responded:
“Inference has not been mentioned in this case, but inference is a fact in the same way, it is within the scope of your duty to find facts and I do not think you should get hung up as to the difference between inference and facts. A fact is that something happened. An inference that you draw from a fact is that by reason of the existence of one fact, you conclude another fact happened. The example that I gave you is that if you see your child in the kitchen and he or she comes in crying at three or four years of age and they have skinned knees, you are entitled to infer from that, that this child has fallen and skinned its knees. You do not have to look for weird explanations in relation to matters. In other words, an inference is a fact from which you can deduce or conclude that another fact exists. Now both facts and inferences from facts are within your province. By ‘bear the meaning’, it means ‘does it mean’? That is all.
Foreman of jury: That is ok.
Mr. Justice Charleton: Does that cause you a difficulty?
Foreman of jury: No, alright, thank you.”
There was a discussion between counsel for the plaintiff and the learned trial judge on the subject. Counsel for the defendant submitted that the answer to the question was correct and was opposed to any re-charge being given to the jury. Counsel for the plaintiff then referred the trial judge to a passage from Gatley on Libel and Slander, 10th Ed. at para. 3.12 to 3.16 on the subject of the meaning of words.
“That if they believe that the message of the article, taking it as a whole between the lines, is to either of the effects pleaded, then they are entitled to act on that and that is wholly different from drawing inferences of the kind which the court has mentioned.”
Having considered the submissions, the learned trial judge indicated that he would re-address the jury to point out that “The natural and ordinary meaning also include implications or inferences as set out in paragraph 3.15 of Gatley”.
The jury was recalled by the learned trial judge and when they re-appeared in court, they were wearing their coats. The trial judge began to address them and explain that what he was going to do was “to try and do is tell them what does the question, does the article mean mean?” (sic). At that stage, the foreman intervened and said: “We actually have made a decision.” The learned trial judge asked the jury to listen and go back and consider their decision. He added that he was taking it that there was no decision. He then addressed the jury in the following terms:
The jury retired again. Counsel on behalf of the plaintiff at that stage requested that the jury be discharged given that the jury had said they had arrived at a decision on the basis of the original charge in response to their question. After some brief discussion, the trial judge refused to discharge the jury. The jury returned almost immediately and brought in a verdict for the defendant. The question that now arises is whether the verdict reached by the jury in answering “No” to both questions on the issue paper is unsafe in the circumstances described above.
“Sometimes the meaning can be absolutely clear as where the article says, so and so is a murderer and sometimes where an ordinary person reading the article as a whole would take from it or would infer that the plaintiff is a murderer. That is the allegation. Those things constitute the meaning of the article. What is specifically stated and what an ordinary person reading it as a whole will take from it. Now that is the best I can do in relation to that. Would you like to go back briefly please. I am asking you to go back and then come back, if necessary, in five minutes and give us your decision.”
The verdict of the Jury
A number of issues have been raised on this appeal in relation to the conduct of the trial and a number of rulings given in the course of the trial but as I have already said the main issue surrounds the arguments on behalf of Ms. Leech to the effect that the verdict of the jury was unsafe. The difficulty arose from the question asked by the jury seeking assistance as to the meaning of the phrase “bear the meaning”. On being asked that question the trial judge gave a definition of the word “inference”. The explanation given by the trial judge was not correct in the context of the meaning of words used in an article. Following submissions on the point, he accepted that the response he gave was not appropriate and on that basis he decided to re-charge the jury. As can be seen from the sequence of events described previously, by the time the submissions had concluded and when the jury came back for the purpose of being re-charged, the jury had actually made a decision as indicated by the foreman. In those circumstances the learned trial judge requested the jury to go back and consider their decision and continued his re-charge. Apart from any issue with the manner in which the learned trial judge then re-charged the jury, it is contended on behalf of Ms. Leech that there was bias on the part of the jury in the sense that the jury had clearly reached their decision prior to the final re-charge and thus the verdict of the jury could not be regarded as being unbiased. Reference was made to the decision in the case of The People (DPP) v. Tobin  3 I.R. 469, a decision of the Court of Criminal Appeal in respect of an appeal from a conviction for rape and sexual assault. During the course of the trial the foreman of the jury in that case disclosed to the Court that as the jury were deliberating, a member of the jury related a personal experience of sexual abuse. The foreman of the jury assured the Court that it was not affecting the impartiality of that person in any way but explained that the jury believed they should report the matter to the Court. The trial judge in that case declined to discharge the jury. The case was certified for appeal by the trial judge on the ground “That the Court failed to discharge the jury when it was brought to the attention of the Court by the foreman of the jury that a member of the jury had disclosed during the course of their deliberations that a particular member of the jury had a prior experience of sexual abuse”. In his judgment, Fennelly J. considered the appropriate test to be applied and it was concluded by the Court of Criminal Appeal in allowing the appeal that the test to be applied was an objective one, namely, whether there was a “reasonable apprehension” of bias, which was the test which applied to the judiciary and a fortiori applied to the case of a challenge alleging bias in a jury. The Court further held that, in the special circumstances of the case, a reasonable and fair-minded observer would consider that there was a danger in the sense of a possibility that a juror might have been unconsciously influenced by his or her personal experience and for that reason the appellant might not receive a fair trial. Fennelly J. in the course of his judgment reviewed a number of authorities including Webb v. The Queen (1993 -1994) 181 C.L.R. 41, Sander v. United Kingdom  Crim LR 767 and Reg. v. Gough  AC 646. For example in the case of Sander, the issue that arose was the fact that a note had been sent to the judge expressing concern at the expression of racist sentiments by a member of the jury in respect of a case involving a British citizen of Asian origin. Having reviewed those authorities, Fennelly J. (at p. 477) observed:
It was contended on behalf of Ms. Leech that in the circumstances that had occurred and despite the direction of the learned trial judge that the jury should go back and consider the decision which they had already reached, no reasonable person could have had anything other than a reasonable apprehension that the subsequent decision of the jury, minutes later, might have been affected by pre-judgment in circumstances where the foreman of the jury had interrupted the learned trial judge in his re-charge to indicate that the jury had reached a decision.
“The rich and growing body of case law in this jurisdiction regarding complaints of bias in decision-making bodies (including the courts themselves) contains very few instances of alleged juror bias and none of the type which arises in this case. It seems, however, that our courts have, in other cases of alleged bias, preferred the second of the two formulations of the objective test set out in Reg. v. Gough  AC 646. . . . On this basis Denham J. in her judgment in Bula Ltd. v. Tara Mines Ltd. (No. 6)  4 I.R. 412, stated at p. 439:
‘Thus, there is well settled Irish law that the test is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not receive a fair trial of the issues.’
She went on to compare Reg. v. Gough  AC 646 and Webb v. The Queen (1993-1994) 181 C.L.R. 41. She quoted in extenso from the judgment of Mason C.J. in the latter and she adopted his reasoning.
Bula Ltd. v. Tara Mines Ltd. (No. 6)  4 I.R. 412 of course, was concerned with allegations of bias at the highest levels of the judiciary. It is notable, therefore, that the ‘reasonable apprehension’ test applies even there. A fortiori, therefore it applies to the case of a challenge alleging bias in a jury. The additional admonition recalled in nearly all of the cases and cited by counsel for the appellant in the present case is Lord Hewart C.J.'s celebrated dictum from R. v. Sussex JJ., ex p. McCarthy  1 KB 256 at p. 259, ‘. . . that justice must not only be done, but should manifestly and undoubtedly be seen to be done’. In the end, of course, the application of the test is a matter for decision of the court on the facts of the individual case.”
By contrast, counsel on behalf of the Newspaper submitted that on an objective assessment of the facts there was no basis for any case of real or perceived bias on the part of the jury. It was pointed out that following the re-charge by the trial judge he stated to them that they were “to listen to this and go back and consider your decision. You have not been asked as yet for your decision, I am taking it that there is no decision”. It is the Newspaper’s case that that is precisely what the jury did. Reliance was placed on the decision in Dawson v. Irish Brokers Association  IESC 39 at page 6 where it was stated:
Relying on that authority, it was submitted that it must be assumed that the jury did what it was asked to do, namely to go back and consider its decision in the light of the further re-charge by the learned trial judge.
“Once again, it is necessary to reiterate, as this Court is doing with increasing frequency, that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant, or should not have been given before them, as well as in the face of adverse pre-trial publicity. See D. v. Director of Public Prosecutions  2 IR 465; Z .v. Director of Public Prosecutions  2 1R476 and Irish Times Limited.v. Murphy [199812 ILRM 161.”
It was further submitted that the jury spent further time deliberating following the final re-charge by the learned trial judge. On that basis it was submitted that there was no case to suggest that there was actual or perceived bias on the facts or as a matter of law.
The appropriate test to be applied in this case is the test identified in the decision of the Court of Criminal Appeal in The People (DPP) v. Tobin referred to above, namely an objective one as to whether there was a “reasonable apprehension” of bias. The question to be asked is whether a reasonable and fair-minded observer would consider that there was a danger in the sense of a possibility that the jury, having already indicated that they had a decision made did not in fact re-consider their verdict in the light of the further re-charge by the learned trial judge.
The circumstances of this case are unusual. When the jury was re-called for the purpose of the final re-charge, the jury were already wearing their coats and when the Judge began to address them by way of the re-charge, the foreman of the jury interrupted to say that they had in fact reached a decision. The jury were then further re-charged and asked to go back and consider their decision. The precise length of time that they re-considered the verdict is not clear from the transcript which only makes reference to a short adjournment. It appears to have been a matter of minutes. What is clear is that the jury did not spend any lengthy period of time reconsidering their verdict following the re-charge.
This is not a case in which there is a suggestion that there was some form of bias in the sense of prejudice towards an accused person or undue sympathy for a victim of a crime as in the cases of Sander v. United Kingdom or Webb v. The Queen. It is a case in which the issue is as to whether or not there was pre-judgment on the part of the jury in reaching a decision. The jury had reached a decision by the time the trial judge sought to re-charge them following further submissions from counsel. Reference was made in the course of the submissions to “the robust commonsense of juries” (see D. v. Director of Public Prosecutions  2 I.R. 465 and Kelly v. O’Neill  1 IR 354). I agree with the general proposition that juries have robust commonsense. It is for that very reason that we have trial by jury in criminal matters and in a limited number of civil actions. The system of trial by jury has stood the test of time. I accept that as a general rule, a jury is capable of following a judge’s directions to ignore a piece of irrelevant evidence or adverse pre-trial publicity, for example. Nevertheless, the most unusual circumstances of this case must give rise to a real concern as to the safety of the verdict where the jury had told the learned trial judge that they had made a decision, were re-charged and told to go back and consider their decision and proceeded to deliver their verdict minutes later. Applying the test identified by Fennelly J. in Tobin, I am driven to the conclusion that a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that by the time of the final re-charge by the learned trial judge, the jury had already made up their minds. On that basis, I am satisfied that the verdict of the jury in this case is unsafe.
Even if I were not satisfied that the verdict of the jury in this case was unsafe for the reasons set out above, I would have come to the same conclusion having regard to the direction given to the jury as to the meaning of the phrase “bear the meaning”. When the jury asked the question . . . “could it bear the meaning to carry an inference?”, the learned trial judge gave an explanation as to inference which was subsequently accepted by him not to be correct in the light of further submissions. In the course of those submissions, the learned trial judge accepted that when one is considering the natural and ordinary meaning of words complained of, the natural and ordinary meaning includes implications or inferences as described in Gatley on Libel (10th Ed.) at paragraphs 312 to 316. The matter is set out succinctly at paragraph 315 where it is stated:
“The natural and ordinary may also include implications or inferences.”
The learned trial judge did not use that phrase but told the jury the following during the re-charge:
The jury were looking for an explanation as to whether they could draw an inference from the words used in the article complained of as to the natural and ordinary meaning of those words. The subsequent re-charge seems to me to have fallen short of providing the jury with a clear explanation as to whether or not the natural and ordinary meaning of the words could also include implications or inferences such as those contended for by Ms. Leech. The purpose of the judge’s charge to the jury is to give directions on the issues of law that arise in the case with a view to assisting the jury to reach a verdict. In Walsh on Criminal Procedure, the author said at p. 934:
“Sometimes the meaning can be absolutely clear as where the article says so and so is a murderer and sometimes where an ordinary person reading the article as a whole would take from it or would infer that the plaintiff is a murderer. That is the allegation. Those things constitute the meaning of the article. What is specifically stated and what an ordinary person reading it as a whole will take from it.”
“…the judge should aim to translate the relevant rules and principles into workable standards which could be applied by a layman and avoid broad disquisitions on the law which are aimed at an academic or professional audience.” This applies with equal force to the judge’s charge in a civil action.
I sympathise with the view of the learned trial judge that it would not be appropriate to read lengthy passages from a textbook to a jury in the course of a charge but sometimes a clear and straightforward text book explanation may be of assistance. I am of the view that what was stated by the learned trial judge in the course of the re-charge did not undo the confusion caused by the earlier explanation of an inference and did not go far enough in explaining to the jury, to use the words used by Mr. O’Higgins, “That if they believe that the message of the article, taking it as a whole between the lines, is to either of the effects pleaded, then they are entitled to act on that….” and accordingly for that reason also the verdict of the jury is unsafe.
This case was the first case in which the so-called “Reynolds” defence of qualified privilege was raised. At the end of the day that defence did not go to the jury in circumstances where one of the tests for relying on that defence, namely the test of demonstrating that there was fair and responsible journalism in the publication of the article complained of could not be met as the Newspaper chose not to go into evidence. Nevertheless there was much argument in the course of the case on this issue and one of the complaints made on behalf of Ms. Leech was that there was an error on the part of the learned trial judge in not ruling that the defence was unavailable before Ms. Leech commenced her evidence unless the Newspaper confirmed at that stage that it was going into evidence. Complaint was made that the Newspaper was allowed to cross-examine Ms. Leech relying on its defence of “Reynolds” qualified privilege even though subsequently, it did not go into evidence resulting in that defence not going to the jury. The provisions of s. 26 of the Defamation Act 2009 now incorporate a defence of “fair and reasonable publication on a matter of public interest”. Section 26(1) provides:
Sub-section (2) goes on to set out a number of matters to be taken into account when considering whether it was fair and reasonable to publish the statement concerned. In this case, counsel on behalf of Ms. Leech sought a ruling on the “Reynolds” defence prior to her going into evidence. It may well be that an application to rule out such a defence could be made at the outset of a case on the basis that the matters pleaded could not in any circumstances give rise to such a defence, be it, the “Reynolds” defence or the defence as now provided for in s. 26 of the 2009 Act. However, where such a defence is open on the pleadings, it would appear to be premature to rule out such a defence prior to evidence being given. Even if the defendant indicated clearly at the outset of the trial that he or she was not going into evidence, it may be possible for the evidence to come from the Plaintiff or the Plaintiff’s witnesses. The arguments in this case centred on the lack of particulars contained in the defence as to how the “Reynolds” defence might arise and the learned trial judge accepted that particulars ought to have been given in relation to the “Reynolds” defence. However where there were extensive notices for particulars and replies to particulars and no notice for particulars was raised in relation to the public interest defence, he took the view that it was not appropriate to shut out the “Reynolds” defence at that stage by reason of the absence of particulars. At the conclusion of the evidence, he ruled out that defence given that in the absence of evidence the test required to give rise to the defence in relation to responsible journalism had not been met. I am satisfied that the approach of the learned trial judge in not ruling out “Reynolds” defence at the commencement of the trial was more than appropriate.
The main ground of appeal in this case centred on the events that occurred towards the end of the jury’s deliberations. The fact that the jury returned to court wearing their coats, having been recalled by the court for a further re-charge, were told by the learned trial judge that he wished to say something else to them, that the foreman of the jury announced that the jury had made a decision, that the learned trail judge re-charged them, asked them to go back briefly and then come back and give a decision, coupled with the fact that the jury returned with a verdict within a matter of minutes, has led me to the conclusion that a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that by the time of the final re-charge by the learned trial judge, the jury had already made up their minds and had done so on the basis of an erroneous charge. I am satisfied that the verdict of the jury was unsafe on this ground. Accordingly, I would allow the appeal.
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 19th day of December, 2014 (No.2)
1. The plaintiff is a married mother of two children and is by occupation a self-employed communications consultant. The defendant is the proprietor and publisher of numerous publications, including the “Irish Independent”, a newspaper with a substantial circulation within this jurisdiction.
2. On the 17th December, 2004, the defendant published an article which related to what had occurred during the course of a live broadcast the previous day, on RTÉ Radio, in a programme titled “Liveline”. Both the broadcast and the publication occurred within the context of highly prominent and sustained media coverage, in the preceding few weeks, of an alleged relationship between Mrs. Leech and a then Government Minister, Minister Cullen, giving rise to allegations that the plaintiff indulged in sexual activity with the Minister in return for obtaining contract employment, and/or for obtaining such employment on terms which could not objectively be explained or justified other than by reference to such relationship. On the 10th February, 2005, she instituted defamation proceedings in the High Court which, in light of the jury’s response to the two questions submitted, had to be dismissed. This occurred on the 28th June, 2007. It is her appeal from this order and the jury’s verdict which is the subject matter of this judgment.
3. The article in question appeared on p. 10 of the broadsheet issue of the newspaper’s edition of the 17th December, 2004, under the heading “Gasps and blushes as Norman turns Joe’s show into vileline”. The article reads as follows:-
“A caller to RTE’s Liveline show left radio chiefs red-faced yesterday when he made a lewd remark about Environment Minister Martin Cullen and his controversial PR adviser Monica Leech.
During a discussion on the rights and wrongs of her appointment to the €127,775 -year-job, presenter Joe Duffy took a call from a person who called himself Norman and who said he was from Cork and a member of the Progressive Democrats.
Norman: “Well I think Martin Cullen has done a good job. And Monica Leech, for all we know, is not being overpaid at all.”
Joe interjected: “Keep defending.”
Norman: “We really don’t know what she’s been doing anyway. Maybe she’s been doing other things for him besides constituency work - maybe she’s “s….. his c…..”
Joe Duffy, immediately cutting in: “We’ll cut the line”. An advertisement break followed.
Last night, RTE said it disassociated itself from “comments made on today’s Liveline in relation to Martin Cullen and Monica Leech and to apologise for any offence caused”.
The station said the caller in question “misrepresented himself to the programme and proceeded to make vulgar comments that understandably caused offence to many listeners”.
The programme had immediately cut the caller off and apologised.
Mr. Duffy later apologised once more dissociating RTE from the caller’s comments.
RTE added: “As a live phone-in show, Liveline monitors all its calls and has strict procedures in place to prevent bogus calls getting on air”.
IN the Seanad last night, the decision by the Taoiseach to order an inquiry into Ms. Leech’s appointment was welcomed by Fine Gael Senator Michael Finucane.
He said the current publicity surrounding the matter was not helpful to the Minister and the ongoing drip-feed of information in relation to the consultant appointment was damaging to politics. The Taoiseach in ordering an investigation into the Monica Leech controversy, is anxious anything he does is not in contravention of any probe which the Standards of Public Office (SIPO) Commission may undertake.
Labour leader Pat Rabbitte raised the question in the Dail on Tuesday.”
4. The proceedings alleged that the article in its natural and ordinary meaning meant and was understood to mean that the plaintiff, as a married woman, had an adulterous sexual relationship with Minister Cullen, including having oral sex with him, in return for obtaining a well paid and beneficial contract of employment, and further, that the substance of the allegation, as so described, was true, as RTÉ had apologised only for the lewd, crude, blue and vulgar tone of the allegations as made. By reason of the defendant’s publication it was claimed that the plaintiff had been devastated, had been shunned and avoided, had been exposed to public scandal and contempt, had suffered acute embarrassment and hurt to her feelings and overall had been gravely damaged in her character and reputation. She sought damages therefor, including aggravated and/or exemplary damages.
5. The amended defence made three pleas. Firstly, that the published material in its natural and ordinary meaning, but not in the meanings pleaded by the plaintiff, was true in substance and in fact in that:-
In support of this plea, it was further indicated that reliance would also be placed on the other matters of fact as set out in the article. A plea of both fair comment and qualified privilege then followed. Finally, it was denied that the plaintiff’s character had in any way been damaged or that she was otherwise entitled to compensation on any of the levels as claimed.
6. As supplemented by multiple requests for and replies to particulars, the case opened before Charleton J. and a jury on the 26th June, 2007. Throughout the trial several issues were canvassed which called for various rulings by the trial judge in the absence of the jury. Eventually the issue paper posed the following two questions for consideration:-
The paper went on to say that if the answer to either 1(a) or 1(b) was yes, then the jury was to assess damages. As it turned out, the jury answered both questions 1(a) and 1(b) in the negative. Accordingly, the trial judge was obliged to dismiss the action, which he did in light of those findings.
“1. Did the article of Friday the 17th December, 2004, published by the defendant bear the following meanings arrived at?
(a) that the plaintiff, a married woman, had had adulterous sexual relations with Minister Martin Cullen,
(please answer “yes” or “no”)... ____________
(b) that the plaintiff, a married woman, had performed deeply intimate sexual favours, namely oral sex, for Minister Martin Cullen for the sake of a well paid and beneficial contract,
(please answer “yes” or “no”) ____________”
7. A Notice of Appeal was filed on the 6th September, 2007, containing in all 37 grounds of appeal. I propose to concentrate on the following:-
The reason for this limited approach becomes clear by reason of the order which I propose at the conclusion of this judgment.
(a) The judge’s charge to the jury;
(b) The judge’s explanation regarding the word “meaning”;
(c) The judge’s refusal to discharge the jury when requested to so do;
(d) The positioning of s. 26 of the Defamation Act 1961 relative to evidence of prior compensation; and
(e) The deferral of certain rulings during the course of the trial.
The RTE Proceedings:
8. The plaintiff had separately instituted proceedings against RTE arising out of the broadcast in which she alleged that the meaning of the words broadcast by RTE was that as a married woman she had engaged in an adulterous relationship with Minister Martin Cullen, and that she had performed deeply intimate sexual favours, namely oral sex, for the Minister for the sake of a well paid job. In May, 2007 this action was compromised and settled on the basis of RTE reading an apology to the Court and agreeing to pay the plaintiff the sum of €250,000 in damages and her costs to be taxed in default of agreement.
Issues (a), (b) and (c):
Charge/Requisitions/Jury’s Question/Explanation/Failure to Discharge
9. After a lengthy and detailed charge to the jury, counsel on behalf of both parties raised a number of requisitions arising therefrom. The jury originally retired at 4.28pm on the 27th June, 2007, and, having been recharged, retired again to consider its verdict at 4.31pm.
10. At some point in time, which the judge described as being “close enough to 5.30”, but which the transcript should have, but did not record, the jury returned with a question. Having told the jury that they would not be held prisoner and that they could cease their deliberations then or continue until, say, 6.00pm, if they wished, the foreman indicated that they would continue for a while more and when 6.30pm was suggested, he stated “Hopefully we will be able to come up with something before that. We have not been able to agree yet. We have questions. What does ‘bear the meaning’ mean?”
11. The following engagement then followed:-
For clarity it should be noted that the question underlined was not in fact asked by the foreman but rather by a jury member.
“Judge: Bear the meaning?
Foreman: What does ‘bear the meaning’ mean?
Judge: Alright, that is fine I understand that. Bear the meaning simply means ‘means’. That is all it means.
Foreman: Does it mean?
Judge: Yes, does it mean? It does not have any term of art. If there is an article and you are asked a question, does the article bear the meaning that the plaintiff is a murderer, then the issue, on reading the article as a whole, is it saying the plaintiff is a murderer? That is “does it mean” yes.
Foreman: It is not could it bear the meaning to carry an inference?
Judge: Inference has not been mentioned in this case, but inference is a fact in the same way, it is within the scope of your duty to find facts and I do not think that you should get hung up as to the difference between inference and facts. A fact is that something happened. An inference that you can draw from a fact is that by reason of the existence of one fact, you conclude another fact happened. The example that I give you is that if you see your child in the kitchen and he or she comes in crying at three or four years of age and they have skinned knees, you are entitled to infer from that, that this child has fallen and skinned its knees. You do not have to look for weird explanations in relation to matters. In other words, an inference is a fact from which you can deduce or conclude that another fact exists. Now both facts and inferences from facts are within your province. By ‘bear the meaning’, it means ‘does it mean?’ That is all.
Foreman: That is okay.
Judge: Does that cause you a difficulty?
Foreman: No, alright. Thank you.”
10. This exchange gave rise to an immediate and significant objection taken by counsel on behalf of the plaintiff, who opened his remarks by saying that he was seriously concerned about what the jury had been informed. In his submission, the judge’s response, regarding inferences, was related to a situation arising in the context of circumstantial evidence, which bore no relationship to the question which the juror had truly asked. It was said that this misunderstanding was unfortunately compounded by the judge repeating the words “By ‘bear the meaning’, it means ‘does it mean?’ That is all”. In immediately pressing for a correction, counsel quoted paras. 3.15 and 3.16 of Gatley, Libel and Slander 10th Ed. (“Gatley”), which makes it clear that any belief on the part of the jury that they were confined to the literal meaning of the words in an article could be a serious disadvantage to the plaintiff. Having seen the passages and considered the submissions as made, the learned trial judge agreed to recall the jury and to direct them to this effect.
11. On being recalled, although the transcript does not record what happened, the following is accepted to have occurred: the jury appeared in their coats and when the judge began to tell them how confused they would be if he began reciting the above passages from Gatley, he was interrupted by the foreman, who told him “We have actually made a decision”. In response the trial judge stated:-
“Yes. Can I just ask you to listen to this and go back and consider your decision. You have not been asked as yet for your decision, I am taking it that there is no decision. It is this: sometimes the meaning can be absolutely clear as where the article says, so and so is a murderer and sometimes where an ordinary person reading the article as a whole would take from it or would infer that the plaintiff is a murderer. That is the allegation. Those things constitute the meaning of the article. What is specifically stated and what an ordinary person reading it as a whole will take from it. Now that is the best I can do in relation to that. Would you like to go back briefly, please, I am asking you to go back and then come back, if necessary, in five minutes and give us your decision.”
12. Immediately, counsel on behalf of Mrs. Leech sought to have the jury discharged on the basis that the original charge, in the context of first explanation of the phrase ‘bear the meaning’, was incorrect and that such was so acknowledged by the trial judge, as verified by his agreement to redirect the jury on the point; however, prior to having an opportunity to do so, the jury had reached their verdict on the basis of the original direction. This situation in counsel’s view was incapable of remedy, certainly in the circumstances then presenting. The trial judge rejected this request and received the jury’s verdict virtually immediately thereafter. Their decision, as above outlined, was to answer both submitted questions against Mrs. Leech.
13. The appellant submits that as a result of these events, the trial must be considered as unsatisfactory, as it also must be given that the attempted redirection on the issue was also erroneous.
14. In support of this ground of appeal, it is submitted that the issue in question should be resolved by the application of the well known principles regarding pre-judgment or perceived bias. Whilst these are well established and have frequently been applied, the issue of “effective bias” in a jury is rather novel, but it has been considered by the Court of Criminal Appeal in The People (DPP) v. Tobin  3 I.R. 469, where, in the Court’s judgment, the correct test was one of “reasonable apprehension”. So approached, it is claimed that a reasonable person standing in the shadow of the plaintiff/appellant would justifiably have such an apprehension in the circumstances herein described.
15. The defendant/respondent alleges that this contention is misconceived both in fact and in law. Firstly, the facts, as set out previously, disclose that when the judge agreed “to recharge” the jury on the question of meaning, he did so not by way of correction, but rather by way of giving a fuller explanation for what he had already told them. There was thus nothing erroneous about his original charge on this matter. Secondly, the trial judge, in the circumstances which he then faced, specifically asked the foreman and the other members of the jury to again retire and consider their verdict in light of the recharge. It is therefore entirely wrong to suggest that the jury’s verdict was reached before the issue in question had been clarified to them. In such circumstances, bearing in mind what the Supreme Court said in Dawson v. Irish Brokers Association  IESC 39, about the undesirability of discharging a jury save in extreme cases, the trial judge was perfectly correct in refusing to do so as the situation envisaged in Dawson did not apply in the instant case.
16. The factual situation on this aspect of the case is most revealing. Assuming for a moment that the agreement of the trial judge to recharge the jury was necessary so as to correct his original charge, it is clear from the transcript that before getting an opportunity to do so the jury had reached their verdict, which presumably the foreman had entered on the issue paper. Whilst not clear from the transcript, it has not been contested but that when announcing the verdict to the Court, the jury members had their coats on, thereby clearly indicating that in their view at least the task assigned to them had been completed. The trial judge therefore faced a most unusual situation, which presented a serious difficulty for him. The only way of retrieving the situation and maintaining the integrity of the process was to get the jury to discard their original verdict, and to reconsider afresh their decision. If that could not be achieved, the only other course open would have been to discharge the jury.
17. So, the judge asked the jury “to listen to him”, and to go back and consider afresh their decision. Having himself decided that there had been no decision, and having given the recharge, he concluded by saying “…would you like to go back briefly, please, I am asking you to go back and then come back, if necessary, in five minutes and give us your decision”. Within a very short period of time thereafter the jury then returned with the verdict as above indicated.
18. It is not known and never will be as to how the jury reacted to the recharge against the background of their previously declared verdict. They may have de novo reconsidered their decision in light of it, or they may have simply decided or assumed that the recharge made no difference to that decision, or they may have simply given a perfunctory thought to it. All one can do at a review, at this remove, is to infer from the circumstances what is likely to have occurred. Whilst I will come back to the legal test in a moment, it seems to me that one possibility is that the final verdict was reached without or in disregard of the recharge, with the other being that such recharge was meaningfully considered by them. The likelihood of this latter scenario must be considered in the contextual setting in which this incident took place.
19. The jury had deliberated; a matter of concern arose giving rise to a question which the trial judge addressed them on; objection was taken to what he said; he agreed with the submission made and decided to address them further; they returned to the court for this purpose, but with a declared verdict and coats on; they were told that they had not in fact reached a decision, were recharged and asked, if necessary for only five minutes, to retire again; within a strikingly short period of time they returned again with the final verdict.
20. On any objective assessment of these circumstances, one thing is certain, namely that one could not be sure to any sustainable level of probability that the recharge was fully understood by the jury, or that it was properly applied, or that the relevant aspect of the case to which it was addressed was then re-evaluated, or that their earlier deliberations, conducted on what was alleged if not admitted to have been an erroneous basis, had been effectively stood down and the entire matter considered afresh. This conclusion has a direct bearing on the bias argument.
Was the Original Charge Correct?
21. The jury’s question and the judge’s answer are set out above, as are the exchanges between counsel and the judge which followed (paras. 9, 10 and 11). The only additional passage in the transcript which might be noted is the reference by the judge, as part of the original charge, to inferences, in which context he gave as an example that where a child skinned his knees, one could infer that he had fallen. Clearly such is an example of one meaning of the word, which meaning is undoubtedly what the judge had in mind, as the above passage (para. 11) shows, where he said “an inference that you draw from a fact is that by reason of the existence of one fact, you conclude another fact happened”.
22. The question which the jury required clarification on was unrelated to the meaning of this type of inference. Rather, their query can best be described as asking “can we read between the lines”, meaning that as fair and reasonable minded readers of the article could they find a defamatory meaning even if such was not evident from a strict or literal meaning of its terms. In other words, the article may infer something other than what is precisely stated on the face of it. This is quite a different situation from proving or establishing some special fact, by reason of which a defamatory meaning can be drawn. The latter is a plea of innuendo, whereas the former is not; such is a means by which the words, still in their ordinary natural meaning, can also be interpreted.
23. Words generally are construed in their ordinary and natural meaning, that is, as understood by reasonable and fair-minded people possessed of ordinary general knowledge and experienced in worldly affairs. Gatley states that “The natural and ordinary meaning may also include implications or interferences” (para. 3.15), and the author continues at para. 3.16:-
The passage goes on:-
“Ordinary Meaning and Implications
What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of words, but that expression is rather misleading in that it conceals the fact that there are two elements. Sometimes it is not necessary to go beyond the words themselves, as where the claimant has been called a thief or a murderer, but often the sting is not so much in the words themselves as in what the ordinary man will infer from them. And that is also regarded as part of their ordinary natural meaning.”
“The ordinary and natural meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be part of the ordinary natural meaning. The ordinary natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge, and not fettered by any strict legal rules of construction, would draw from the words.”
24. This summary of the position is well supported by authority such as Jones v. Skelton  1 WLR 1362 at 1370-1371, where the Privy Council, via the judgment of Lord Morris of Borth-y-Gest, stated:-
See also Mitchell v. Faber & Faber Limited  E.M.L.R. 807, C.A.
“The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words.”
Accordingly, I am satisfied that this is the correct legal position and that it also represents the law in this jurisdiction.
25. Consequently, it was imperative for the judge to make it clear to the jury that an implied or inferred meaning could also be taken from the article even where no extrinsic evidence had been pleaded or established. In the absence of such clarification, and in particular noting the jury’s question, it would be highly likely that a perfectly permissible method of ascertaining meaning would be lost on them.
26. In fairness, it should be acknowledged that by agreeing to recharge the jury, the trial judge evidently took the view that the scope of his earlier explanation on the question asked had been insufficient. Despite his intention, however, and even if the intervening circumstances had not occurred, it is highly likely that even the recharge was inadequate. Accordingly, I am satisfied that the objection taken by the appellant’s counsel to the answer given of the question asked was well founded.
Resolution of Issue:
27. If the dispute on this appeal should be looked at on the basis that the re-charge was disregarded, it would mean that the jury had reached a final verdict by relying on an erroneous statement of law as contained in the judge’s charge. The point to which that aspect of the charge was addressed was a central one in the case and cannot be dismissed as being peripheral, subsidiary or otherwise marginal. In such circumstances the issue before this Court would be no different to many other appeals where the deciding body, whether judge alone or judge with jury, had made a fundamental decision based on a serious error of law. The verdict in such circumstances would have to be set aside.
28. On the other hand, if the dispute should be determined based on the alternative scenario, namely that one cannot be sure in what respect and to what level the jury considered the recharge, then one must consider this ground of appeal in the context of the principles of bias by pre-judgment and also on the application of fair procedures.
29. The debate as to what the appropriate test is in applying the principles of apparent bias to any given case has been ongoing for several years, but was definitively established by the Supreme Court in Bula Limited v. Tara Mines Limited (No.6)  4 I.R. 412 (“Bula (No.6)”). The contest was between “a real likelihood” test (R. v. Gough  AC 646) and a “real suspicion” or “apprehension” test.
30. An essential difference between both was highlighted by Mason C.J. and McHugh J. in Webb v. R. (1993-1994) 181 C.L.R. 41 at a passage quoted at p. 79:-
Such was quoted with approval in Bula (No.6), where in her judgment Denham J. said:-
“In Gough, the House of Lords rejected the need to take account of the public perception of an incident, which raises an issue of bias except in the case of pecuniary interest. Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge. But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question.”
This statement of principle can be taken as representing the law in this jurisdiction.
“… it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.”
31. In The People (DPP) v. Tobin  3 I.R. 469, a case involving the prosecution of the accused person on sexual charges, the foreman of the jury disclosed to the court that during their deliberations, a member had related a personal experience of sexual abuse. Being satisfied to accept the jury’s assurance that such did not affect the impartiality of the person in question, the trial judge took no further action. On appeal, however, the verdict of the jury was set aside on the basis that there was a “reasonable apprehension” of bias.
32. Fennelly J., giving the judgment of the court, reviewed some of the authorities above mentioned and added to the principles outlined, the celebrated expression of Lord Hewart C.J. in R. v. Sussex Justices., Ex. parte McCarthy  1 KB 256, where it was stated:-
Assessing the argument according to the standard of a reasonable and fair-minded observer, who knows of the relevant facts, the Court was of the view that there was “a danger, in the sense of a possibility, that the juror might have been unconsciously influenced by his or her personal experience and for that reason the appellant might receive a fair trial”. In the circumstances the verdict was, as stated, set aside.
“…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
33. The hypothetical observer in this case would be reasonably familiar with the allegations alleged and the pleas asserted in reply. He or she at a general level would have followed the issues and would have had an understanding of the respective roles of both judge and jury and the significance of the judge having given to the jury directions which were legally incorrect. He would understand how influential the judge would be in the jury’s mind. Following the debate between counsel and the judge, he or she would know of the judge’s agreement to recharge the jury on this point. Being then witness to what occurred thereafter, and what is set out above, would this fair-minded individual have a reasonable suspicion or apprehension that the recharge was of little (or, indeed, any) value in the verdict which the jury brought in? In my view, so framed, the question permits of only one answer.
34. I would equally come to a similar conclusion on the basis of fair procedures. Articles 34 and 40.3 of the Constitution guarantee rights similar to the ‘due process clause’ under the U.S. Constitution. Those rights do not stop with bare access to the courts. Once it becomes necessary for a litigant to seek redress so as to defend or vindicate his rights, including of course the right to one’s good name, which has specific constitutional protection, then as part of the process such person has a constitutional right to fair procedures. This right, in a jury trial, is to have jury issues determined by a body which is unbiased in any of the several ways in which that might come about. In this case, the suggestion under this heading is that prior to the recharge the jury had in fact determined the issue and thus the final verdict was simply a repetition of their declared position made known earlier.
35. As is obvious, such procedures must be carried into a trial and be maintained for its duration. There is no distinction in principle between a civil case tried with or without a jury and a criminal case in this regard. The aspect of due process which arises in this case is the plaintiff’s right to have the jury properly instructed as to what legal principles should apply to the defined issues intended to be left to them for their consideration. By acknowledging an intention to recharge, it can be taken that the judge saw merit in the submission of counsel who requested the same. This step, as I will demonstrate, was necessary so as to redress the incorrect information given to the jury in response to their question. As circumstances arose, it was not possible to ensure that the jury obtained the benefit of the judge’s guidance in this regard to the extent which would be required by fair procedures. I would therefore also allow the appeal on that ground and order a retrial.
Section 26 of the Defamation Act 1961
36. At common law it was not permissible for a defendant to establish as part of its mitigation plea that some third party, on other occasions, had defamed the plaintiff by the same libel or by the publication of the facts alleged in the libel: the reason simply was that this was considered wholly irrelevant. This could operate both ways, in that the plaintiff would get no benefit in not having previously sued, if that was the case, and the defendant could not say to the plaintiff that he had already obtained compensation, if that was the case (Gatley, Libel and Slander, 10th Ed. at para. 33.55). This rule could not be circumvented by claiming that such earlier publication had damaged the plaintiff’s reputation. This was thought as being unfair, but only in a very specific way: hence a statutory exception first introduced in s. 12 of the English Defamation Act 1952, and by s. 26 of the Irish Defamation Act 1961, which is in identical form.
37. Section 26 of the 1961 Act reads as follows:-
“In any action for libel or slander the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.”
38. Gatley points out that this amendment, although welcome, “can provide a dilemma for a defendant, for evidence of damages already recovered, if substantial, may be treated by the jury as a benchmark for their assessment in the instant case, and if modest, may cause them to react by awarding a much larger sum on the basis that the claimant was, in their view, undercompensated in the earlier case”. So it would appear that its invocation is a strategic matter for a defendant who must assess which course of action is likely to be the most beneficial for the defence.
39. In Browne v. Tribune Newspapers Plc  1 IR 521 (“Browne”), Keane C.J., who reviewed the legal position as it existed prior to the statutory amendment, did so in light of a submission that the common law position was not that as above described but rather permitted what the defendant in Browne sought to do. Having pointed out that in any event evidence of unrelated publications could only be relevant to damages, the Chief Justice went on to explore the practical effect on the running of a trial if either the plaintiff or the defendant had been being able to call evidence in relation to previous proceedings.
40. At a minimum, such would involve giving a detailed explanation as to the nature of the earlier publications, the meanings alleged to be defamatory therein, the course of the proceedings, the findings by the jury and the damages awarded. If such an action should have concluded otherwise than by jury verdict, say, by agreement, similar details would have to be forthcoming. In response a plaintiff would have a right not only to test the evidence as given but presumably to call other evidence in rebuttal. This, in effect, might well compel the trial judge to conduct a virtual trial within a trial, which would be remarkably damaging to the integrity of the instant proceedings before him. In Browne, the defendant, having received permission from the trial judge, elicited from the plaintiff the fact that he had instituted at least four sets of previous defamation proceedings in which he had obtained a total of about IR£80,000 in compensation. That line of questioning, said the Chief Justice, should not have been permitted.
41. The Court then considered the statutory amendment introduced by s. 26 of the 1961 Act; at p. 535 of the report Keane C.J. went on to say:-
“The reason for this provision is obvious. It would be clearly wrong that a jury should be required to assess damages for a libellous publication without being aware that the plaintiff had already been compensated in respect of virtually the same libel, although appearing in another publication. However, if it were permissible for the defendant to adduce evidence of the institution by the plaintiff of defamation proceedings in respect of wholly unrelated libels, which would be of significantly less relevance, then a fortiori he should have been entitled, even in the absence of any statutory provision, to give evidence of damages recovered in proceedings for effectively the same libel or slander. If he were so entitled, as it claimed on behalf of the defendant in the present case, the provisions of s. 26 would seem to be entirely superfluous.
…But it seems to me that the provision in question is a clear indication that the general accepted view of the law at the time of the enactment of the English provision, on which s. 26 of our Act of 1961 is based, was that such evidence was not in general admissible.”
42. This rule was part of a wider practice, established by several authorities, which did not permit cross examination of a plaintiff as to other unrelated defamation proceedings which he may have successfully issued in the past. These authorities are reviewed at length in Browne, where Keane C.J. was satisfied that the conclusion which he reached was fully supported by the amendment itself.
43. Section 26 of the 1961 Act is therefore a clear exception to the position at common law in this type of action; indeed, that position also pertains to other forms of proceedings, such as personal injuries, subject only to specific exceptions such as where the injuries may have overlapped or an exaggerated claim is suggested. Accordingly, the general rule continues to apply unless the section can be invoked.
44. Some debate was had in this case as to whether or not it was necessary to plead the section. I accept that it may not have to be, in a strictly pleading sense, as there may not exist circumstances at the time when a defence is filed which would bring the section into play. However, I have no doubt but that notification of an intention to operate the section must be submitted to the plaintiff in ample time so that he can consider the resulting position. It would be a most unsatisfactory situation if a defendant could, typically during the course of a trial, inform the judge of his intention to rely upon its provisions with little or no notice to the plaintiff: litigation by surprise, even with defamation actions, is bygone.
45. Being a statutory exception to the common law situation, I am quite satisfied that the evidence which is envisaged by the operation of this section can only be admitted in accordance with its provisions, whether these are expansive or restrictive. For example, it is clear that it applies to a defendant only, that the tendered evidence is confined to mitigation of damages, that earlier proceedings have issued or that damages have been recovered, and that such proceedings or damages were “in respect of the publication of words to the same effect as the words on which the action is founded”. (Emphasis added)
46. This becomes relevant in light of the RTE proceedings in that it is submitted on behalf of the appellant that the trial judge was in error in permitting defence counsel to question the plaintiff in relation to such proceedings without insisting upon the defendant also having to accept that the meaning of the broadcast in question was to the same effect as the published article.
47. The defendant rejects this contention. It points out that as the section relates to damages only, it cannot be the case that it must first accept that its publication is libellous before being able to refer to material which otherwise comes within s. 26. In this case it is said that the appellant pleaded precisely the same meanings in the instant case as she had in the RTE case. Accordingly, her cross examination by counsel dealt with the question of damages recovered by her in respect of the publication of words to the same effect as the words in which this action was founded. On the appellant’s case the words in both actions had precisely the same meaning. On any view, therefore, they were to the same effect. Whilst the RTE proceedings had been compromised and thus there was no record of a finding as to meaning, the section does not require this. Indeed, it explicitly embraces situations where compensation for an earlier libel had been obtained by agreement. Accordingly, it is suggested that the judge was correct in the manner in which he ruled on this point.
48. Disregarding for a moment what is the precise meaning of the phrase in issue, I am satisfied that the section can operate only in respect of such words as have the same effect as those upon which the current proceedings are founded. This, in my view, is an essential precondition for the section’s application: how it is so established is not the issue. Rather, it is that the previous actions or damages relate to a libel whose material is to the same effect. Unless such is established by way of evidence or admission, it is not possible in my view for the defendant to invoke the section.
49. Like any other precondition for the reception of evidence, the trial judge must be satisfied that its terms have been met before permitting the evidence to be adduced. This is all the more important in a jury trial. It could not be the situation that a defendant would be permitted to conduct a cross examination, without having called evidence, in the hope or expectation that this condition can be satisfied by admission. Such would offer no safeguard to a plaintiff and could seriously jeopardise his position before the jury even if they were subsequently asked to disregard that evidence. This section was designed for a limited purpose, and even then subject to conditions. Such must therefore be satisfied before any evidence can be led or elicited or obtained.
50. In addition, could I make two further points on s. 26 of the 1961 Act. Firstly, the same words do not have to be involved; rather the purpose of the section is that whatever words are used must have the same effect as the words grounding the action in question. Secondly, I do not see within the section any requirement for a defendant to abandon any defence before the section can be used. It may be that on some basis existing outside the section an inconsistency argument may be made, but that does not stem from its provisions.
51. Finally, there is one further observation which I wish to make. There cannot, I think, be any dispute but that it is no defence for a defendant, who publishes what is otherwise a libel, to escape its consequences by simply adding a disassociation from what is published. Secondly, likewise it is no defence, in the type of publication mentioned, for the defendant, when repeating what otherwise is a libel, to add a comment dissociating itself from the original and repeated libel. If, as might appear, the defendant in this action was suggesting that its repetition of RTE’s dissociation from the comments made by the caller to Liveline meant that the article was not defamatory, the trial judge should have informed the jury that such a dissociation was no defence.
52. Given the order which I propose, I do not think it would be appropriate to say anything further on s. 26 of the 1961 Act.
53. For the reasons above given, I am quite satisfied that the verdict of the jury must be considered as unsafe and be set aside. Accordingly, I would allow the appeal.