Supreme Court dismisses appeal against £60,000 libel damages for a prisoner with a flawed reputation.

THE SUPREME COURT

Record No: 335/2000

Murphy J

Murray J

McGuinness J

Between:

Finbarr Hill

Plaintiff/Respondent

AND

Cork Examiner Publications Ltd

Defendant/Appellant

Judgment of Mr Justice Francis D Murphy Delivered the 14th Day of November, 2001

On the 17th day of November, 2000, Barr J ordered that Finbarr Hill, the above named Plaintiff/Respondent, (Mr Hill) should

recover from the Cork Examiner Publications Limited, the above named Defendant/Appellant (the Examiner) the sum of £60,000

as damages for a defamatory article published by the Examiner of and concerning Mr Hill together with the costs of the

proceedings. It is from that judgment award and order that the Examiner appeals to this Court.

The background to these proceedings is as follows. On the 5th day of July, 1994, Mr Hill pleaded guilty to a charge of

occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act, 1861, on which he had been indicted,

and on the 25th of July, 1994, it was ordered that he be imprisoned on that charge for the term of three years from the 6th day

of July, 1994, subject to the provision that such sentence should be reviewed on the 11th January, 1996. Subsequent to his

imprisonment the Examiner, with the permission of the relevant authorities, decided to publish an article on Cork jail where Mr

Hill was imprisoned. A journalist and photographer in the employment of the Examiner visited the prison. The journalist obtained

certain information and the photographer took a number of photographs including a photograph of the cell occupied by Mr Hill. It

appears that the reason for photographing the particular cell was that it was kept in a clean condition by Mr Hill. It also

contained a number of posters which might have been expected to give added interest to the publication. There is some dispute

as to how it came about, but Mr Hill was undoubtedly photographed in his cell and that photograph was published in an article

published in the Examiner newspaper on the 25th day of October, 1995, under the headline “Isolation of Cork Jail’s C Wing”. In

the article it was stated that C Wing prisoners were child molesters, sexual offenders or incarcerated there for their own

protection.

By plenary summons issued on the 17th day of December, 1995, Mr Hill instituted proceedings against the Examiner claiming

damages for libel. It was contended in the statement of claim subsequently delivered that the article published by the Examiner

and/or the juxtaposition of the accompanying photographs meant, and were understood to mean that the Plaintiff was a sexual

offender; a child molester, rapist or otherwise that he was a person who was dissolute and of criminal character. In their

defence the Examiner denied that the article bore or was understood to bear the meaning attributed to it by Mr Hill and

furthermore the Examiner denied that the Plaintiff had been injured in his credit or his reputation. It was expressly asserted by

the Examiner that Mr Hill was a man of worthless reputation having been convicted of a number of criminal offences. The matter

was heard before Mr Justice Barr and a jury on the 15th and 16th of November, 2000. Mr Hill and his father, Denis in addition to

four other witnesses were called on behalf of the Plaintiff. No witnesses were called on behalf of the defence. At the conclusion

of the trial the following questions were put to the jury and answered by them as follows:-

“Question 1: Would a reasonable reader of the article complained of have been left with the impression that the Plaintiff

was at the time of publication one of those incarcerated in that part of Cork prison which was at that time reserved for

sexual offenders, child molesters and offenders segregated from the rest of the prison population in the interest of their

own safety?

Answer: Yes.

Question 2: If the answer to question 1 is in the affirmative was the Plaintiff thereby libelled?

Answer: Yes.

Question 3: If the answer to question 2 is in the affirmative assess damages:

Answer: £60,000.”

From that award and the order made pursuant thereto the Examiner appeal to this Court by notice dated the 15th day of

December, 2000, which set out seventeen grounds of appeal. However, Mr John Gordon, SC, on behalf of the Examiner

condensed or grouped the grounds of appeal under four headings, namely:

“1 That the finding of the jury as to the impression which the article would have created on the reasonable reader was

erroneous and contrary to the evidence adduced.

2 That the trial Judge erred by imposing an “excessive limitation” on the evidence that the Defendant was permitted to

adduce in relation to the offence in respect of which the Plaintiff was serving a sentence at the time of publication of the

article.

3 That the trial Judge misdirected the jury on a variety of issues but in particular in relation to:-

(a) the inferences which should be drawn from the article and the gravity of the implication that Mr Hill was a

sexual offender and

(b) the absence of the Plaintiff’s consent to his being photographed in the cell or such photograph being used in

the context of the proposed article.

4 That the award of a sum of £60,000 was perverse and contrary to the weight of evidence.”

Counsel on behalf of the Examiner drew attention to the fact that the article in question related to the prison as a whole: that

it referred to a total population of 230 prisoners as distinct from the 14 sex offenders incarcerated in C Wing. Indeed the article

referred to different categories of prisoners including those convicted of murder, manslaughter, drug offences and larceny as

well as sex offences. Again, attention was drawn to the fact that three of the four photographs accompanying the article

related to the persons or places not particularly connected with C Wing. On the other hand there was no doubt that the article

was entitled “Isolation of Cork Jail’s C Wing” and that the subheading refers to “Cork Prison’s Prison Within a Prison”. Perhaps it

would be correct to say that about one third of the article did focus on sex offenders and their situation in the prison. I am fully

satisfied that the jury having considered the article as a whole were entitled to conclude that a reasonable reader of the article

would have been left with the impression that the Plaintiff was at the time of the publication one of those incarcerated in that

part of Cork prison which was reserved for sex offenders, child molesters and offenders segregated from the rest of the prison

population in the interests of their own safety. I believe that that question was properly left to the jury and I am reinforced in

that opinion by the fact that no application for a direction was made at the conclusion of the Plaintiff’s case.

By letter dated the 23rd day of October, 2000, Messrs Ronan Daly Jermyn, Solicitors on behalf of the Examiner, informed Messrs

Fitzgerald & O’Leary, Solicitors on behalf of Mr Hill, of their intention to lead evidence of certain matters of which particulars

were set out in that letter. Those particulars referred to three prosecutions, namely, the prosecution of Mr Hill by the DPP on

the 31st of May, 1989; the prosecution of Mr Hill on the 7th of May, 1992; the prosecution of Mr Hill on the 17th of February,

1996, and, finally the prosecution of Mr Hill on the 5th of July, 1994, which resulted in his being sentenced to the term of

imprisonment which he was serving at the date on which the article was published. In relation to the three earlier prosecutions

Mr Hill was not sentenced to any term of imprisonment. The letter from Messrs Ronan Daly Jermyn aforesaid was in effect a

notice under Order 36 Rule 36 of the Rules of the Superior Courts which, while permitting the Examiner to give such evidence in

mitigation of damages, limited such evidence to that of which particulars had been furnished, save with the leave of the trial

Judge.

As a result of that notice, a debate took place between Counsel and certain rulings were made by the learned trial Judge at the

outset of the trial. Detailed discussion took place as to the nature of evidence as to the bad reputation of the plaintiff which

might be tendered on behalf of a defendant in a libel action. It was accepted by both Counsel that the judgment of Cave J in

Scott .v. Samson [1882] 8 QBD 491 correctly stated the law in relation to general evidence of bad reputation when he said:-

“Damage, however, which he (the plaintiff) has sustained must depend almost entirely on the estimation in which he was

previously held. He complained of an injury to his reputation and seeks to recover damage for that injury; and it seems

most material that the jury who have to award those damages should know, if the fact is so, that he is man of no

reputation. To deny this would, as is observed in Starkie, evidence, be to decide that a man of the worst character is

entitled to the same measure of damages with one of unsullied and unblemished reputation.”

The problem has always been to distinguish between evidence of general bad reputation and of specific conduct on which such

reputation might be based. As Lord Denning pointed out in Plato Films Ltd .v. Speidel [1961] 1 AC 1090 (at 1138):-

“In order to arrive at a man’s character and reputation we should call those who know him and have had dealings with

him: for they provide the only sound foundation on which to build ... If it is evidence of good character, a witness of

good standing is called, such as a clergy man, a school teacher, an employer and is asked such questions as these:

“What are you? How long have you known him? Have you known him well? Have you had an opportunity of observing his

conduct? What character has he borne during the time for honesty, morality or loyalty? (according to the nature of the

case)”. “As far as you know, has he deserved that character?” .... If it is a witness of bad character which is given

(such as that of a man who is a reputed thief or a woman is a common prostitute), the evidence often takes the form

of a police officer who knows him being called and saying: “I know the defendant and have known him (or her) for some

time he is a well known pickpocket” or “she is a common prostitute” or as the case may be.”

In general, specific acts of misconduct are not admissible as proof of general bad reputation. Perhaps the primary reason for

that restriction is that the allowance of such evidence would lead to innumerable subsidiary trials of collateral issues concerning

the reputation of the plaintiff. It is clear that evidence of specific previous convictions is an exception to the rule. One

justification for that exception is the clarity and certainty with which a conviction can be established. In the course of his

debate with Counsel the learned trial Judge summarised the position as follows:-

“He (the plaintiff) has an admitted bad reputation relating to the offence of which he was serving a sentence at the

time. That is a serious crime which the jury will be told about but I do not think it would be proper to go into the

minutiae of that particular crime. It would mean investigating the entire of it and it would be bringing the jury down a

cul de sac which would not really in the end help them very much. At the end of the day they know he has been

convicted of a serious crime, that is all they require to know. I will certainly exclude all attempts to investigate the

details of that particular crime.”

When Counsel on behalf of the Examiner indicated his intention to put to the Plaintiff the publicity which the offence had

attracted the learned trial Judge commented as follows:-

“You will be treading on delicate ground but the way you put it just now it seemed to me to be acceptable but you are

treading on delicate ground there is the risk of having the jury discharged it maybe so it is only right to indicate that to

you.”

The learned trial Judge went on to state expressly that the publicity attracted by the offence would have been well publicised

in Cork and evidence of it would be unobjectionable. As the Judge said “widespread publicity is fair enough because that relates

to his reputation”.

In my view those observations made, as they were, at the commencement of the case and not directed to any specific

application to tender any particular evidence or to rule on any question put in cross-examination, are very helpful and entirely

unobjectionable. Furthermore, the warning that a particular line of cross-examination might lead to the jury being discharged

was not, in the context, a threat by the Judge but a fair reminder by him to Counsel of the delicate balance which the law

requires to be preserved between giving evidence of general reputation and excluding the matters of specific misconduct (other

than criminal convictions).

The Examiner did not in fact call any witnesses to give evidence of general bad reputation but did invite witnesses, and in

particular Mr Denis Hill, to comment on his reaction to the conviction of the Plaintiff for causing actual bodily harm to a member

of the Garda Síochána. Mr Hill Senior was not invited to comment on any particular newspaper reporting on his son’s conviction

for that offence. It would seem to me that evidence of that nature would have been admissible and within the general ruling

given by the trial Judge at the commencement of the trial.

On behalf of the Examiner it was contended that the form of the trial Judge’s charge to the jury tended to imply or assume that

the article was defamatory of Mr Hill and, furthermore, by describing sex offences as “loathsome crimes” the Judge had usurped

the function and role of the jury in determining whether the article was defamatory and, if so, the range of damages to be

awarded by way of compensation.

This argument is based - as is so often the case of a challenge to a charge - on a restricted analysis of the charge itself and

more particularly the context of the trial in which the charge is delivered. From the outset the entirety of the article was made

available to the jury. It is proper to recall that the article was handed in to the jury and furthermore Counsel on behalf of the

Plaintiff, in opening the case, was required by the defence to read the entire of the article to the jury. In my view there could

be no doubt whatever but that the jury had an opportunity of seeing, reading and understanding the totality of the article and

the accompanying photographs. It must also be recognised that the trial Judge in his charge emphasised more than once that

all matters of fact were to be decided by the jury and not by the Judge. Finally - and in the circumstances of this case it is of

particular importance- no requisition was made in respect of the charge in relation to any such complaint but only in regard to

the particular issue as to whether the Plaintiff (Mr Hill) had consented to his photograph appearing in conjunction with the

article.

In the course of his charge the learned trial Judge gave directions to the jury in relation to the matter in which the photograph

was taken of Mr Hill in his cell and subsequently used in the offending article. Counsel on behalf of the Examiner made a

requisition in relation to that aspect of the charge and sought (and obtained) the recall of the jury for further guidance in

relation to it. In his direct evidence Mr Hill explained that he had made it clear that he did not want to be in any picture taken

of the cell occupied by him and that it was in fact agreed by the Governor of the prison that he would not be in the picture. In

cross-examination when Mr Hill repeated that he had not consented to the photograph being taken it was put to him that the

photograph might reasonably create the impression that he was actually posing for the photograph. His account was challenged

along those lines. No evidence was called on behalf of the Defendants to dispute the Plaintiff’s version and the evidence given

by the prison Governor and Mr Maurice Healy, a prison officer, might be described as inconclusive. As the trial took place five

years after the photograph had been taken, it is not surprising that the prison officers were vague in their recollection as to

precisely what was said at the time when the photographs were taken. I am fully satisfied that there was nothing included in or

omitted from the charge in relation to this aspect of the matter which could have unfairly affected the outcome of the trial.

As to damages: In some cases it is possible to make a reasonably accurate estimate of the damages sustained by a plaintiff as

a result of the wrong doing of a defendant. Where a plaintiff is disabled as a result of the wrong doing with the result that it

can be anticipated with reasonable confidence that he would be unable to return to work at all or at any rate to resume

employment at a particular level of remuneration for a period which can be ascertained with reasonable confidence the loss so

sustained can be determined on the basis of mathematical - perhaps crude mathematical - principles. On the other hand it is

difficult, if not impossible, to find any nexus between the pain, embarrassment or disfigurement suffered by a plaintiff and the

sum of money which would be appropriate to compensate him for any such consequences of a wrong doing. Judges in charging

juries as to their responsibilities in determining damages or in performing the same task themselves can say or do little more

than recall that damages are designed to compensate for the consequences of a wrong doing and not to punish the wrong

doer. It will always be said - perhaps unhelpfully - that the sum awarded should be reasonable to the plaintiff and also

reasonable to the defendant. In relation to the extent to which a trial judge could and should give guidance as to an

appropriate measure of damages was considered by this Court in De Rossa .v. Independent Newspapers [1999] 4 IR 6 and again

in O’Brien .v. MGN (unreported 25th October, 2000). Whilst other jurisdictions have accepted the concept of such guidelines

that concept has been rejected in this jurisdiction. Apart from any other consideration there would appear to be insuperable

difficulties for any judge to assemble the appropriate body of information on which to base such guidelines.

A special status attaches to an award for damages for defamation as determined by a jury. In Barrett .v. Independent

Newspapers [1986] IR 13 the then Chief Justice pointed out (at page 19) that:-

“The assessment by a jury of damages in a defamation action had an unusual and emphatic sanctity and an appellate

court should be slow to interfere with such an assessment. However, the discretion of the jury in the assessment of

damages was not limitless and the damages awarded must be fair and reasonable having regard to all of the

circumstances and must not be disproportionate to the injuries suffered by the plaintiff and a necessity to vindicate the

plaintiff in the eyes of the public.”

In the present case the learned trial Judge did remind the jury that “the accused has a damaged character. He has pleaded

guilty to a serious crime of violence in the course of an affray involving a number of people in which he has pleaded guilty to

causing substantial personal injury to a member of An Garda Síochána. That is a serious offence”.

The learned Judge in his trial went on to say:-

“If you find, therefore, that he was libelled was the article then he is entitled to damages but not to the extent which

would be justified if he had himself a blameless character.”

Indeed the learned trial Judge in the course of his charge emphasised that:-

“If you come to assess damages there is no doubt about it that this case is not one where large damages are merited.”

There was indeed one aspect of the charge on which both parties were agreed and on which the trial Judge inadvertently

misdirected the jury. The learned Judge did refer to the career of the Plaintiff subsequent to his release from prison and the

good reputation and good work record which he created in the subsequent years. As a matter of law that subsequent

reputation was not directly relevant in ascertaining the damages caused by the defamatory article. To that extent the Examiner

might have objected to the observations of the trial Judge. On the other hand the emphasis placed on the relatively prompt

reinstatement of the Plaintiff’s good name was a factor which might have tended to reduce the amount of the damages

awarded by the jury. Certainly neither party sought to raise any requisition on the charge of the learned trial Judge in respect

of that matter.

At the end of the day this Court is left with the difficult task of determining whether an award of £60,000, for what was a fairly

serious libel of a young man, albeit a young man with a somewhat flawed reputation, was disproportionate to the injury done to

him in all of the circumstances of the case. One particular circumstance to which the Examiner draws attention is the fact that

any imputation that the Plaintiff was or fell within the category of sex offenders or rapists was corrected by a notice or

clarification published in the Examiner on the 21st of November, 1995. That clarification was not an apology and in the

circumstances could not have been. Moreover, the Examiner emphasises that the clarification was published at the earliest

practicable date: the delay in publication being due substantially to the failure of the Plaintiff for his legal advisors to co-

operate in publishing such a notice at an earlier date.

There is no doubt that the sum of £60,000 awarded by the jury was a substantial sum. It may well be at the higher, or even

the highest, of the figures in the range which would be appropriate to compensate a Plaintiff for the wrong doing which he has

suffered. However I am not satisfied that the figure awarded is so disproportionate to the injury sustained by the Plaintiff

(Respondent) that it can or should be set aside by this Court. Accordingly I would dismiss the appeal and affirm the order and

judgment of the High Court.