Supreme Court reverses Court of Appeal for substituting facts in defamation case, upholding High Court's finding against newspaper.

An Chúirt Uachtarach

The Supreme Court

Denham CJ

O’Donnell J

McKechnie J

MacMenamin J

Dunne J

Charleton J

O’Malley J

Supreme Court appeal number: 2015 no 000092

[2017] IESC 046

Court of Appeal record number: 2014 no 116

[2015] IECA 225

High Court record number: 2000 486P

Between

Martin McDonagh

Plaintiff/Appellant

- and -

Sunday Newspapers Limited

Defendant/Respondent

Judgment of Mr Justice Peter Charleton, delivered on Wednesday 28 June 2017

1. Principally, this appeal concerns the role of an appellate court in reversing findings of fact and, in particular, substituting its own

ruling in place of a trial court’s determination. In this defamation case, the central allegation by the defendant newspaper was that

the plaintiff Martin McDonagh was actively part of a gang which imported about €500,000 worth of drugs - ecstasy and cannabis resin

- into Tubbercurry, County Sligo, in an operation intercepted by the gardaí on the evening of Monday, 30th August 1999. Two men

were arrested and later convicted of this. These were the people found in personal physical control of the drugs. The plaintiff was

elsewhere at the time of the interception. While the jury in the High Court found that the newspaper had not proven at trial that the

plaintiff was criminally involved in drug dealing, the Court of Appeal overturned that verdict and, furthermore, found as a matter of

fact that he was.

Background

2. The plaintiff Martin McDonagh was the subject of the front page article in the September 5th 1999 issue of the Sunday World, a

newspaper published by the defendant. He was, at that time, under arrest in Sligo and was being questioned by detectives on

suspicion of drug smuggling in consequence of a very large seizure in Tubbercurry. Under the banner headline “TRAVELLER IS NEW

DRUGS KING”, and, referring to the plaintiff by an unpleasant nickname, it announced “The Shark is arrested as huge haul of hash and

ecstasy is found”. Apparently based on informed sources, which some might think to be irresponsible members of the gardaí who

leaked information to the press, it described the plaintiff as “one of Ireland’s top drug dealers”, “a violent moneylender”, a man with

no “visible means of income”, but with “a series of convictions”, and leading “a lavish lifestyle”. His nickname is explained in the piece

as being a reference to his reputation as an unlicensed moneylender or ‘loan shark’. The importation of about €500,000 worth of illegal

drugs is linked to him in the piece, though the implication was that evidence would be hard to find to connect him as “the drug baron

does not touch drugs and never carries them.”

3. The plaintiff was released after 7 days of questioning by gardaí. According to statements made to them while in custody, many of

which he later disavowed, this article threw him into a panic, made him a target for assassination and ruined his life. During his

detention, he was taken with a suspected heart attack to Sligo General Hospital. He issued a plenary summons claiming defamation on

17th January 2000, followed by a statement of claim on 2nd February of that year. The newspaper delivered a defence 2 years later

on 2nd April 2002. It denied that the words were published “wrongfully or maliciously”, claimed an occasion of qualified privilege,

denied any entitlement to damages, and pleaded at paragraph 10:

… the words complained of were … the result of the exercise by the defendant of its rights under articles 40.3 and

40.6.1º.i of the Constitution.

4. At the 5 day High Court trial before deValera J and a jury, which commenced on 20th February 2008, the newspaper claimed that

the article was true; a plea of justification. The newspaper consequently bore the burden of proof of showing as a probability that the

allegations in the article were factually made out. Pared down, the newspaper had to demonstrate that the plaintiff was a drug dealer

and outlaw money lender who enjoyed a lavish lifestyle in consequence of illegal earnings. On the 28th of that month, the jury retired

with a series of questions settled by the trial judge. The jury found for the plaintiff. The High Court judge made an order accordingly.

The following are the questions put to the jury and the answers which they gave in reply:

Question 1: Has the Defendant proved:

i. that the Plaintiff is a drug dealer?

Answer: NO

ii. that the Plaintiff was a loan shark?

Answer: NO

iii. that the Plaintiff was a tax evader?

Answer: YES

iv. that the Plaintiff was a criminal?

Answer: YES.

Question 2: If the answer to one or more parts of Question 1 is no, but the answer to one or more parts of Question 1 is

yes, do the words not proved to be true materially injure the Plaintiff’s reputation having regard to the truth of the

remaining charges?

Answer: [no answer given]

Question 3: If the answer to 2 is yes, assess damages.

Damages: €900,000.00 plus costs

5. The newspaper appealed to the Court of Appeal. The result is best encapsulated in the order of that court dated 16th November

2015 which reads:

that the appeal be allowed against the entirety of the verdict and that the said High Court order be set aside and that

the plaintiff’s claim for defamation by reason of the drug dealing allegation be dismissed and that the plaintiff’s claim in

relation to the loan sharking allegation be remitted to the High Court for retrial…

that the plaintiff do pay to the defendant the costs of the appeal and two-thirds of the costs in the High Court …

that the plaintiff do repay to the defendant the sum of €900,000 which was paid out on foot of said High Court order …

6. In effect, the Court of Appeal, in the judgment of Hogan, Kelly and Irvine JJ overturned the verdict of the jury that the plaintiff

was not a drug dealer. In dismissing the plaintiff’s claim for defamation on that score, the Court of Appeal found as a fact that he was

a drug dealer. Consequently, he had no entitlement to damages. The smaller issue relating to illegal loan practices was remitted for

retrial. Leave for appeal to this court from the Court of Appeal was granted on 18th February 2016, [2016] IESCDET 27.

Issues certified for appeal

7. The issues certified for appeal in the Court’s determination of 18th February 2016 include these three issues:

(i) whether it is open to the Court of Appeal to reverse a jury verdict that a statement was defamatory of the plaintiff

arrived at even in the face of strong evidence to the effect that the defending allegation was true;

(ii) whether the media have a constitutional right to publish material, and that this right cannot be compromised by a jury

verdict to the effect that such material was defamatory of the plaintiff;

(iii)whether the Court of Appeal is entitled to reverse the verdict of the jury on the grounds that it was perverse, if some

other alternative explanation was open to the jury.

8. There are also two other matters. The Court, firstly, also certified a question as to the present legal status in this State of the rule

in Brown v Dunne, in circumstances where little of the evidence adduced by the newspaper, either in regard to the allegation of drug

dealing or loan sharking, had, in fact, been directly challenged in cross-examination. Having briefly considered that issue, there

remains, secondly, a consideration of the appropriate order on appeal, it now being over 17 years since the offending article was

published in the Sunday World newspaper.

Reasoning of the Court of Appeal

9. The judgment of the Court of Appeal is cast as integral to the constitutional claim to freedom of expression asserted in paragraph

10 of the newspaper’s defence. Before the Court of Appeal, this argument was not in the newspaper’s written submissions. Counsel

for the newspaper does not now recall making that point orally. Hogan J reasoned thus at paragraph 59:

It is true, of course, that … neither the Constitution nor the European Convention of Human Rights gives any right to

defame another under the guise of freedom of expression. The converse, however, is also true: if the published words are

true in substance or in fact, then the author has a constitutional right by virtue of Article 40.6.1º.i to publish these words

as part of his or her “convictions or opinions.” This is especially true in the case of the media whose “rightful liberty of

expression” is a key component of Article 40.6.1º itself.

10. The Court of Appeal was also of the view that there would always be an entitlement, once something was true, to disseminate

that information as part of the guarantee enacted by the people in Article 40.6.1º of the Constitution of “liberty for the exercise of …

the right of citizens to express freely their convictions and opinions.”

11. The judgment continues, however, at paragraph 60 to relate the entitlement to express a matter of truth in relation to the

education of public opinion on a matter of high community importance. That, in this case was the eradication of the scourge of drug

misuse, while also noting the importance of ensuring that the right to a good name is not wrongly undermined:

It is clear, therefore, as confirmed by the language of Article 40.6.1º itself, the Constitution ascribes a high value to the

discussion by the media of matters concerning serious criminality. The right to educate and to influence public opinion is

at the heart of the rightful liberty of expression protected by Article 40.6.1º. A publication of the kind at issue in the

present proceedings provides the public with further details of the Garda operation whereby high value illegal drugs were

seized. It is, accordingly, through information provided in this manner that public opinion regarding matters such as the

effectiveness of policing policy, the enforcement of our drugs laws, the level of organised crime in society and other

related matters is ultimately formed. As I have just pointed out, this right does not, of course, permit the media to publish

defamatory material, since this would breach the proper balance which must be struck between the (potentially

competing) constitutional value of freedom of expression (Article 40.6.1º) on the one hand and the protection of a good

name (Article 40.3.2º) on the other.

12. After a review of what the Court of Appeal took to be the evidence on both sides, the judges overturned the verdict of the jury.

The Court of Appeal then purported to find as a fact contrary to the conclusion of the tribunal of fact, the jury, which had heard and

seen all the witnesses over 5 days. The Court of Appeal substituted at paragraph 92 their own conclusion:

Reviewing the evidence as a whole, I find myself coerced to the conclusion that it shows overwhelmingly that the plaintiff

was, indeed, a drug-dealer and that the jury’s conclusion to the contrary was perverse and cannot be allowed to stand.

The unchallenged Garda evidence pointed unambiguously to the plaintiff’s deep involvement with the drugs shipment, a

conclusion underscored by all the known facts regarding the UK trip which showed the plaintiff travelling with and

associating with the persons convicted of possession of the drugs and other persons who were either drug dealers or

reputed to be drug dealers. To this may be added the unchallenged evidence of the very large sums lodged in the

plaintiff’s bank account for which there was no satisfactory explanation.

13. The Court of Appeal conducted an analysis of the evidence before the jury and determined, firstly, that the finding that the

newspaper had not proven as a probability that the plaintiff was a drug dealer was perverse and, secondly, that only one view of the

evidence was possible: namely, that the plaintiff actually was a drug dealer. This conclusion that the evidence went only one way, in

point of fact, lacked accuracy.

Evidence in the High Court

14. The evidence at the trial in the High Court consisted of that of the plaintiff himself, his daughter who testified as to his upset at

the publication, two character witnesses, a publican and a lecturer, and there the plaintiff’s case ended. The newspaper’s case was

based largely on the evidence of several detective gardaí who had interviewed the plaintiff. An admission against interest is an

exception to the rule against hearsay. Hence, these were admissible at the civil trial. What the jury made of them is another matter

as they were neither obliged to accept the statements as true or partly true. Much of what was written down by the detectives as

said in custody was disputed by the plaintiff under cross-examination by counsel for the newspaper. In addition, the newspaper called

those and Garda other witnesses with a view to proving the reputation of the plaintiff as a loan shark and as a drug dealer. A witness

from the Criminal Assets Bureau and a manager from the Trustee Savings Bank testified to throughput of monies, Sterling and Punt, in

6 accounts controlled by the plaintiff over a 9 year period. This throughput was about €665,000; proceedings to recover income tax

and the proceeds of crime coming to court in 2001. Later the Bureau revised this down to just over IR£419,000, perhaps in

negotiations in the context of that court application. That figure emanated from the plaintiff’s accountant during that process. This

case about improperly acquired money assets was settled on the basis that tax was due of €100,000 and about €11,000 in social

welfare was to be repaid. It should be noted that, confusingly, the denominations of the currency are not consistently mentioned, if

at all, in the transcript. These figures had to be based, in turn, on what portion was the proceeds of crime. In the application, social

welfare fraud and drug dealing were alleged. The plaintiff was on unemployment assistance since July 1998. The largest single

lodgement in these very active accounts was one of IR£16,000. This was all very suspicious. In substitution of the jury’s verdict, the

Court of Appeal found somewhat different facts, stating at paragraph 79(f) that the plaintiff “had at least IR£410,000 in a bank

account at a time when he was claiming social welfare payments and had no other visible means of support”. This is mistaken.

Further, while being interviewed the plaintiff claimed to the gardaí to have been defrauding the social security system in London on a

large scale, a fact upon which the Bureau appears also to have based its proceedings to recover the proceeds of crime.

15. The Court of Appeal also regarded the circumstances of the trip to London as being sufficient to overturn the jury’s verdict that

the newspaper had not proved that the plaintiff was a drug dealer. That court substituted their own findings of fact in place of those

of the jury. At paragraph 79(b) of the judgment, the court said:

Upon arrival at Stansted [Airport the plaintiff] met [Jimmy] McMorrow who has a conviction for drug dealing. He later

travelled to the flat of a friend from Sligo, Graham O’Grady. Mr. O’Grady later travelled to Ireland by ferry and he was later

arrested in connection with the drugs find. Mr. O’Grady was later convicted of the possession of these drugs.

16. The reality of the testimony was different. Certainly, the newspaper had made the case both in the High Court and on appeal that

circumstances pointed clearly to the criminal involvement of the plaintiff. The newspaper pointed out that he had gone to London in

August 1999 with his brother Michael McDonagh and his brother in law Mark Gethins and a friend Calvin “Mouse” Carthy. There the

newspaper claimed that the plaintiff had met Jimmy “The Smell” McMorrow, who had a conviction for drug dealing. The later return to

Ireland of the plaintiff and Mark Gethins, separate to those arrested and convicted of drug importation, namely Graham “Goggs”

O’Grady and Calvin Carthy, coupled with what the plaintiff told the gardaí under interrogation, amounted, the newspaper contended,

to a coercive case that what had been published of him was justified. But, to the gardaí, the plaintiff had always made the case that

on seeing Jimmy McMorrow at Stansted Airport he had “turned on his heel”. Far from meeting him, he claimed to have an animus

against him:

This guy tried to give my daughter ecstasy drugs. My daughter came and told me about it. I done what any father will

do: I hit Jimmy McMorrow a belt for it. I told him ‘Keep away from my family and never come near us again’.

17.The plaintiff had told the gardaí that he took a taxi with Mark Gethins into London, deliberately not having any contact with Jimmy

McMorrow. The Court of Appeal was of the view that he had slept in Graham O’Grady’s flat, but the evidence of the plaintiff was of

sleeping elsewhere with Mark Gethins, while the issue of whether he might have slept in the flat but “not know” was evaded. The

Court of Appeal also claimed that when Graham O’Grady was arrested for this incident, the plaintiff had phoned him. The plaintiff had

indeed been phoned by Graham O’Grady when he was under arrest for a drug importation of a “nine bar”; but this was an incident that

had happened two years earlier.

18. The nature of the responses made to Garda questioning by the plaintiff is encapsulated in an exchange with Detective Garda

Vincent McKeown and Detective Garda Pauline McDonagh during his detention on 2nd September 1999. After every possible suspicion

was skilfully put to him by the two detectives concerning the trip to London, this dialogue occurred:

Question: It is alleged that you deal in drugs?

Answer: I certainly do not.

Question: I have to put it to you that you accompanied your brother [Michael McDonagh] and your brother in law [Mark

Gethins] and a friend [Calvin “Mouse” Carthy] to England who are dealing in drugs?

Answer: That is wrong. When I saw Jimmy McMorrow at the airport I said there is something wrong here and I had a chat

with the brother.

Question: Was Jimmy involved with the boys with the drugs?

Answer: Well, he didn’t come over from Spain for nothing and he’s a wanted man. I knew there was something going on

but I never dreamt there would be that quantity of drugs involved.

Question: So you thought there might be a small amount of drugs involved?

Answer: No. I just thought they were up to no good.

Question: Martin, I have to put it to you that you weren’t going to England with known druggies just for a piss-up?

Answer: Put it any way you want but I know nothing about drugs.

19. Perhaps the jury could have regarded this as evasion, but it was a matter for them. As a matter of criminal law, presence at the

scene of a crime is not a crime; R v Coney (1882) LR 8 QBD 534. It may be that participation can be inferred in some circumstances:

but participation requires assistance to or encouragement of those whose hands are at the task. Standing by while a crime is

committed is rarely a crime, unless there is a duty to intervene. Increasingly, in modern times, statutes cast a duty to report the

commission of a crime on citizens, but no relevant law was cited on this point in the present case. Certainly, a reasonable person

might sympathise with the view that the plaintiff’s explanations, if he made them, do not read well. An observer might also be

tempted to regard the plaintiff as a man who, as was colourfully put to him by the detectives, would escape without a speck if a bag

of flour was thrown over him. Perhaps, on an alternate view, they might see him as the innocent victim of circumstances. Whatever

view is preferred, the questions of whether the Garda suspicions were correct or not, and whether the newspaper was justified in

what it wrote, was classically a jury decision. There was evidence both ways.

Role of appellate courts as to facts found

20. Every possible prior authority was searched. Up to the date of the Court of Appeal judgment, appellate courts had certainly

substituted their own view of damages when upholding liability against a defendant and had also reversed a finding relating to the

defamatory nature of words. Courts on appeal, however, had never purported to make a finding of fact that facts rejected by a jury

were in reality only capable of acceptance thus enabling the substitution by an appellate court of findings of fact in their place.

Transcripts of evidence are not a sound basis for substituting findings of fact made by those who have listened and watched through

an entire trial. It is all too easy to miss a nuance within an issue, to misstate similar events in substitution for one another, to take

the view that what does not read well could not be true, or to blanch at an unattractive statement without being forced to listen

through to any qualification that may accompany it. Certainly, the role of an appellate court in reassessing what in the court of trial

was affidavit or documentary evidence is easier than when witnesses were involved, but even where that is the case, the party

claiming that the trial judge assessed the facts wrongly bears the burden of proving that the trial judge was wrong. In Ryanair v

Billigfluege [2015] IESC 11, it was held at paragraph 6 that:

an appellant arguing for the reversal of any judgment founded on a rigorous analysis of affidavit evidence as to fact bears

a heavy burden in seeking to demonstrate that a trial judge has fallen into such error that the decision made is untenable.

Separately, on an appeal, errors of law are either demonstrated or not as being present in a High Court judgment.

21. In such cases, an appellate court will usually have the benefit of an oral or written judgment setting out what facts have been

determined as correct by the trial judge and why. Where a judge has heard evidence from witnesses, the judgment, oral or written,

will reason out what is accepted and what is not. With a jury verdict, even one answering particular questions, there is no such

judgment capable of analysis on appeal. Had this case been decided by a judge, for instance, he or she would have rendered

apparent what denials, if any, were accepted with regard to the plaintiff’s claim that he had not made admissions or statements

contained in the interview notes. Similarly, the effect of the plaintiff’s social security fraud on the British support system might or

might not inform the conduct of his bank accounts. Certainly, Article 34.4.3º of the Constitution conferred appellate jurisdiction on

the Supreme Court, and this jurisdiction is now largely exercised by the Court of Appeal. But this does not mean that any appellate

court is entitled to substitute facts, precisely found by the trial judge or the broader swathe of what a jury accepts or rejects, with a

view of the facts to which members of an appellate court might come to upon reading the transcript. In Hay v O’Grady [1992] 1 IR

210 at 217 McCarthy J set out three principles from existing decisions. These remain the template for the review of facts on appeal:

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who

hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those

giving it. The arid pages of the transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge supported by credible evidence, this Court is bound by those findings,

however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge

to draw inferences of fact. (See the judgment of Holmes LJ in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v

Macken [1899] 2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336

at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving

evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an

appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or a

recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from

circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.

22. Indeed, there may be cases where an issue of fact ought never to have been left by the trial judge to the jury for its decision.

This would arise where no evidence supported a fact asserted or the state of the evidence rendered a finding on that fact

unsustainable. Once, however, there is evidence both ways, then the question of whether a fact is found or rejected is a matter of

what weight the tribunal of fact ascribe to particular evidence. Just because there is more evidence in terms of witnesses on one side

of a case does not mean that the truth resides where numbers are greatest. To take a stark example: a rich defendant may call

several and very expensive expert witnesses in favour of a proposition, for instance that a particular medical procedure chosen

instead of another was unjustifiably dangerous, but the impoverished plaintiff may nonetheless have a verdict found in his or her

favour where there is a single witness to the contrary or where the facts admit of no other explanation. Trial judges should be alert in

setting questions for a jury as to whether two views are open on the evidence as to the underlying facts. Issues should not be

included on an issue paper where the facts are entirely one way. In McEntee v Quinnsworth Ltd (Supreme Court, unreported, 7

December 1993), a typical theft-defamation case, Finlay CJ warned that, in this context, it was part of the task of the trial judge to

sort out what questions may properly be left to a jury:

If the verdict of the jury were to be held by this court as being so perverse or unreasonable as not to be sustainable then

it would have followed that there should have been a ruling by the learned trial judge withdrawing that question from the

discretion of the jury and directing them to answer it “yes”. In the course of my judgment with which other members of

the Court agreed in Dunne (An Infant) v National Maternity Hospital [1989] IR 100 at 108 I stated as follows:-

“If in a trial in a civil case had with a jury the evidence on any particular fact adduced by one of the parties, having

regard to other uncontroverted evidence, is incapable of being believed, even though sworn to, it is as a matter of

law the duty of the judge to withdraw from the jury that particular issue of fact or to direct the manner in which

the jury must answer it. Having regard to that proposition, I can see no logic in a contention that an issue of fact

could properly be left by a trial judge to the determination of a jury and then in the event of the jury deciding it in

one particular way, their verdict could be set aside by an appellate court which was satisfied that it was proper to

have left that issue.

In so far as the judgments of the former Supreme Court in McGreene v. Hibernian Taxi Co. [1931] I.R. 319 can be

interpreted as meaning that in Ireland the appellate jurisdiction of the Supreme Court from the High Court includes a

jurisdiction to set aside a jury's finding on fact on the grounds that it was against a predominant weight of

evidence, even though it could not be said to be a finding which a reasonable jury could not make, I must decline to

follow it. The sole test, in my view, is whether, in accordance with the principles I have outlined, the learned trial

judge was correct in law in leaving the challenged issues of fact to the jury”.

23. In Barrett v. Independent Newspapers Ltd [1986] 1 IR 13, Henchy J, at page 23, warned against the temptation of an appellate

court thinking that a jury verdict as to what was defamatory should be “condemned as perverse merely because it does not accord

with that of a judge.” A jury verdict is “to be deemed perverse only when no jury of reasonable men, applying the law laid down for

them by the judge and directing their minds to such facts as are reasonably open to them to find, could have reached the conclusion

that the words were not defamatory”; see also the judgment of Denham J in Cooper Flynn v. RTÉ [2004] 2 IR 72 where at page 121

she emphasised that “in defamation actions … the role of the jury is pivotal.” Some authorities have placed the verdict of a jury on a

veritable pedestal, referring to it as being somehow sacred; see Barrett v. Independent Newspapers Ltd [1986] IR 13 at 19 where

Finlay C.J. spoke of a jury assessment on damages having “a very unusual and emphatic sanctity”, and further noted the general

reluctance of appellate courts to interfere with jury determinations, including determinations of appropriate damages. In that

particular case it was determined that, having regard to the defamatory statement at issue, an award of £65,000 was so

disproportionate to any reasonable compensation that the issue of damages needed to be retried. De Rossa v. Independent

Newspapers [1999] 4 IR 432 may also be considered, where at 463, Hamilton CJ rejected the argument that larger awards ought to

be subject to a more searching scrutiny before concluding that an award could only be set aside if it was so disproportionate to the

injury suffered “that no reasonable jury would have made such an award”. Although these latter two cases specifically concerned the

issue of damages, both reinforce the broader point that the determinations of juries in defamation cases may only be set aside with

particular caution..

24. In form, a jury’s holding as to liability, cast as in this case as a simple affirmative or negative to a question, may be harder to

penetrate than the reasoned narrative of a judgment but, nonetheless, it is entitled to as much respect. As Lord Bingham said in

Grobbelaar v. News Group Newspapers Ltd [2002] 4 All ER 732 at 744 the task of an appellate court is to “seek to interpret the jury’s

decision” and it is not “because of justifiable dissatisfaction as to the outcome, to take it upon itself the determination of factual

issues”, which is properly a matter for the court of trial. In that case, a soccer goalkeeper was caught by a newspaper on a sting,

admitting to match fixing for money. The direction of the trial judge, when the plaintiff claimed that he had been merely playing a role

and was not corrupt, and that he had never deliberately let in goals, was that if the jury accepted this they should award small

damages. The verdict for the plaintiff with damages of £85,000 was set aside in the Court of Appeal. This was overturned by the

House of Lords, but substituting a nominal amount while upholding a finding that the plaintiff was defamed, Lord Bingham stating that

while a jury “from time to time [may] act in a wholly irrational way”, any such appellate “conclusion was not to be reached lightly or if

any alternative explanation not involving perversity presents itself.” A jury verdict is only to be overturned where it is unsupported by

evidence. In Barrett v Independent Newspapers Ltd [1986] 1 IR 13, Henchy J at page 23 stated that the “community verdict of a

jury” cannot be condemned “merely because it does not accord with that of a judge.” Perversity in a verdict was to be found “only

when no jury of reasonable men, applying the law laid down for them by the judge and directing their minds to such facts as are

reasonably open to them to find, could have reached the conclusion”, in that case, “that the words were not defamatory.” The rule is

no different where the issue on appeal is the finding as to whether the publisher has justified what the article said of the plaintiff. It is

the task of an appellate court to discern where there is or is not evidence for a finding on an issue. In Cooper Flynn v. RTÉ, Denham J

quoted with approval at page 123 the following passage from Gatley on Libel and Slander (10th edition, 2003, para. 36.19):

Only on very strong grounds will the court in an action for defamation interfere or set aside a verdict or grant a new trial

on the ground that the verdict is unreasonable or perverse. An appellate court ought not to find the verdict of a jury on

liability to be perverse unless there was no rational explanation for it.

25. This approach is consistent with authority. Many authorities emphasise not only the unenviable task of the judge or jury in being

tasked with total concentration on all of the evidence but also the view as to overall credibility that must necessarily come with being

in the presence of witnesses: being there really matters. In Northern Bank v Charlton [1979] IR 149 at 191, Henchy J emphasised

that the task of a trial is to find facts on the basis of “the choice of one version of controverted oral testimony as against another”.

An appellate court should only set aside a:

finding of fact based on one version of the evidence when, on taking a conspectus of the evidence as a whole, oral and

otherwise, it appears to the court that, notwithstanding the advantages which the tribunal of fact had in seeing and

hearing the witnesses, the version of the evidence which was acted on could not reasonably be correct.

26. At pages 20-21 of the unreported judgment in McEntee v Quinnsworth Ltd, Finlay CJ reiterated the core principle:

Having regard to the principles enunciated in the cases of Dunne (an infant) .v. The National Maternity Hospital and Hay

and O'Grady it seems quite clear to me that once a jury were satisfied of the honesty and integrity as witnesses of the

two Plaintiffs in this case they were well entitled on their evidence to accept that they had not been guilty of theft. In so

doing the fact that they were rejecting the evidence of Mr. Kelly, the store security man and of the other security man

who though submitted as an independent witness was in fact under contract to the Defendants and in instances other

than the direct evidence concerning theft possibly preferring the evidence of the Plaintiffs to some of the evidence of the

members of the Garda Síochána who were later called to the scene does not in any way invalidate their verdict.

This principle that the appellate court should not overturn a decision on fact made either by a judge sitting without a jury

or by a jury who have seen and heard the witnesses is no mere procedural limitation on our appellate function. It is

fundamental and the precise issues with regard to which it is raised in this case illuminate its importance as a fundamental

principle of justice. If the submission made by the Defendants on this part of their appeal were to be accepted by this

court then in effect what this court would have done would have been in the case of two persons in respect of whom a

jury were satisfied that it had not been proved they were guilty of theft to condemn them as thieves with all the

consequential damage to their reputation never having heard or seen either of them giving evidence.

27. There is, however, authority that an appellate court can substitute its own assessment of damages, where the verdict of a jury

has erred in principle as to the appropriate amount. This was stated in Holohan v Donohoe [1986] IR 45, which held that any

statutory regulation or restriction of the Supreme Court’s appellate jurisdiction must be clear and unambiguous. Section 96 of the

Courts of Justice Act 1924 provides for the setting aside of a verdict, finding or judgment and for the substitution of “such judgment

as the court thinks proper.” This is carried over in s. 48 of the Courts (Supplemental Provisions) Act, 1961 and, further, s. 13(1) of

the Defamation Act 2009 provides that an award of damages may be substituted on appeal in the following terms:

Upon the hearing of an appeal from a decision of the High Court in a defamation action, the Supreme Court may, in

addition to any other order that it deems appropriate to make, substitute for any amount of damages awarded to the

plaintiff by the High Court such amount as it considers appropriate.

While respect is afforded to the community verdict of a jury as to what is or is not defamatory, the issue of what is capable of

lowering a plaintiff in the eyes of ordinary reasonable members of the community is a matter of law. On appeal, errors of law are

central to the function of the Court of Appeal. In John Fairfax Publications PTY Ltd v Rivkin (2003) 201 ALR 77 an article was

published by the Fairfax Group in a newspaper concerning a death in suspicious circumstances. At issue were the imputations arising

out of the words in a newspaper. These, as a matter of law, could be reviewed on appeal. In another case involving another

newspaper in the group, John Fairfax Publications PTY Ltd v GACIC (2007) 235 ALR 402, a review was published of a restaurant called

Coco Roco, which thundered that it sold unpalatable food and provided bad service. This, the jury found was not defamatory. The

High Court of Australia upheld the determination of the Court of Appeal that no reasonable jury, properly directed, could find that the

imputations in question were not defamatory. In Berry v Irish Times [1973] 1 IR 368, the issue for this Court was whether the words

contained in a photo in the Irish Times of a demonstrator’s placard which read “Peter Berry – 20th Century Felon Setter – Helped Jail

Republicans in England”, while untrue, were defamatory. Peter Berry was, at that time, the head public servant of the Department of

Justice As a matter of law, bringing to justice a fellow countryman who had been tried and convicted in another jurisdiction could not

lower the plaintiff in the eyes of right-thinking members of the community. The intent of the author to defame was irrelevant if the

imputation itself could not be defamatory and was of conduct within community upheld standards; as Ó Dálaigh CJ said at page 375:

“This Court is bound to uphold the rule of law and its decisions must be conditioned by this duty.” Having reviewed those cases, it

can be stated that circumstances exist where it may be necessary to overturn a jury verdict in a defamation case because all of the

evidence tendered at trial pointed in one direction, notwithstanding the respect that must generally be afforded to such verdicts.

Such a decision will not be reached lightly and could only occur in exceptional circumstances. Such exceptional circumstances do not

apply in this case.

The Constitution and the truth

28. The “right of the citizens to express freely their convictions and opinions” is guaranteed in Article 40.6.1º. In itself, that is not an

answer in itself to a defamation action. That right of expression is made expressly “subject to public order and morality”. In

acknowledging that the “education of public opinion” is “a matter of grave import to the common good”, that Article, requires that,

“while preserving their rightful liberty of expression, including criticism of Government policy”, the “organs of public opinion, such as

the radio, the press, the cinema … shall not be used to undermine public order or morality or the authority of the State.” It is thus not

certain that precisely because something is true that there is an entitlement to express it. Older forms of morality distinguished

between the wrongs of calumny – speaking some untruth about another that undermines character – and detraction – speaking about

a matter that undermines character which, while accurate, is either spent, as in the distant past, or which the party addressed has

no interest in knowing. Where would such a broad declaration of a supposed right to always express fact leave the right to privacy?

Further, to guarantee the right to express “convictions and opinions” does not necessarily encompass the right to broadcast a view

simply because it is believed to be true. These rights are guaranteed for the promotion of the “true social order” which the preamble

to the Constitution sets out as its aims. For instance, witnesses protected in consequence of turning State’s evidence in the

aftermath of their involvement in a murder or kidnapping, may well as a matter of truth live in a particular place or have children in a

particular school, but how does the accuracy and truth of such facts justify a newspaper publishing them? Furthermore, there are

means and ways of asserting what people claim to be the truth and there are legal rules for framing the burden and standard of proof,

should such a defamatory comment be challenged.

29. While the constitutional right to a good name is involved in a defamation suit and while no relevant disturbance of public order or

morality might ordinarily impact on the publication of facts concerning criminal activity such as drug dealing, yet there is a legal

structure within which the tension between an exercise in purported truth telling and the right to a good name, which is also

guaranteed in Article 40.3.2º of the Constitution, is resolved. The relevant framework currently is that those who take the character

of another in the media must say in answer to a defamation suit that what was involved was an occasion where the public needed to

know, qualified privilege, or was the expression of an honest opinion based on a sufficient accurate stratum of fact, fair comment, or

that the facts published were true in substance. The burden of proving defamatory facts in justification is on the media outlet

asserting the truth of the publication, or the gist of the publication, should that statutory defence also be invoked. If that burden is

not met as a probability, a plaintiff retains his character. Since it has not been correctly undermined, a plaintiff is entitled to moderate

and appropriate damages. That task, of finding whether a newspaper has lowered a plaintiff in the eyes of ordinary and right-thinking

people, is currently entrusted in cases within the High Court jurisdiction to 12 randomly chosen citizens. In the Circuit Court, it is a

judge. The fact finder determines the facts and, having decided what pieces of evidence have been proven or not proven, the jury,

or in the Circuit Court the judge, will decide the verdict as between competing evidence as it unfolded before the court. It is in this

way that the tension between the right to a good name and the entitlement to express the truth is resolved.

30. There may be other ways of resolving the right to a good name and the right to inform the public, which is what a defamation suit

against the media involves, such as entrusting the task solely to a judge in the High Court, or placing the burden of proof of the

worth of a reputation on the plaintiff who claims to have had his or her character wrongly taken, or enabling a defence based on fair

research into worthwhile sources, but any such change still involves those who have heard the evidence in deciding the facts. Any

such substantive change in the framework of defamation law is, in any event, a matter for legislation. The Court of Appeal heard no

evidence. Effectively, the order of that court substituted the appellate bench as the jury in the High Court. There may be rare

circumstances where an appellate court is compelled to state that the evidence went only one way. Examples might be where a

person accused in a newspaper of murder has admitted while in the course of testimony to an intentional killing, or where an issue

was incorrectly left to a jury despite no evidence being there to support it. Even on appeal in such cases, however, the greatest

caution not to undermine the legal structure ought to be observed.

Loan shark

31. According to an interview with Detective Garda Michael Carr, the plaintiff admitted that he lent money. He appears to have

accepted that the nickname ascribed to him – “The Shark” – derived from that activity. In a later interview with Detective Gardaí

Michael Reynolds and Thomas Doherty, the plaintiff was supposed to have said that he helped “people out every way I can” and that

people “don’t come to me for money unless they can’t get it elsewhere.” Asked what interest he charged, the answer written down

by the gardaí was “100%”.

32. The Court of Appeal regarded it as unsatisfactory that Detective Garda Doherty was not cross-examined to the effect that the

plaintiff could not be an illegal money lender because that was not his avocation. In fact the cross-examination of Detective Garda

Doherty consisted of a statement that “he has disputed … the contents of all of these Garda interviews … in the witness-box”,

followed by a question to the effect that the gardaí were trying to “put words into” his mouth, followed by an allegation that they

had him “brain washed”, followed by a question that this attitude was “not very surprising … for somebody to say who has been

subject to Garda interrogation for six days and six nights”. All this was one question: the answer from the witness was that it was

“possible he was tired at that stage and did not want to answer any more questions.” The Court of Appeal at paragraph 98 hesitated

“before concluding that the verdict on this issue was perverse”. There was, the court said, “much more detailed evidence … in

respect of the drug dealing allegation.” The court ruled at paragraph 99 that:

… the failure of the plaintiff effectively to challenge the evidence of Garda Doherty, the jury ought to have been

instructed that this evidence necessarily carried considerable weight. It might have been nonetheless open to a jury not

to accept that evidence, but it would have to have had a rational basis for doing so. The mere denial of the making of the

statement by the plaintiff might possibly have sufficed for this purpose, but here again the jury would have to have been

instructed that, viewed objectively, the plaintiff’s credibility had been heavily compromised. As no such instructions were

given to the jury in these precise terms, I consider that the verdict on this issue cannot be allowed to stand and there

must be a re-trial on this issue.

33. There was little difference, actually, between the treatment of the drug dealing allegation and this one. There were alleged

admissions by the plaintiff: those made to the gardaí. There was his denial of the statements. There was little in the cross-

examination of him related to the actual issue of illegal money lending. He did produce a character witness to testify that he did not

have a reputation as either. There was, again, depending on the view which the jury took, evidence either way. It is hard to see how

the state of the evidence could improve by ordering a retrial. The satisfactory nature of the trial, however, might be more convincing

were the issues to be engaged appropriatly on both sides.

34. As to the credibility point, there may be circumstances where a comment is called for, but the very strong comment required by

the Court of Appeal is effectively to require the judge to enter the arena on the side of the newspaper. Certainly, as the newspaper

has pointed out, the plaintiff elided or denied certain of his convictions, although these had been agreed in advance with his legal

team. The trial judge pointed this out. DeValera J also reminded the jury that, after some time around summer 1997, the plaintiff had

no income other than from social welfare, though the evidence about the large sums of money paid into his bank accounts after that

date was not disputed. While the plaintiff had told the jury that the Criminal Assets Bureau had never accused him of involvement in

drug dealing, the affidavits from that enforcement agency told a different tale. The plaintiff claimed that he was defamed by the

newspaper claiming he was a tax cheat, though this was admitted by him in cross-examination.

35. These were matters for counsel to emphasise as they saw fit. It is within their province. It is fair to record that the accuracy of

the respective speeches of counsel to the jury was not complained of. The trial judge pointed out to the jury that the evidence that

the plaintiff was a loan shark was entirely dependant on their acceptance that he admitted that to the gardaí. The trial judge told the

jury that a “great deal of your decision making will be based on his credibility and the evidence that he gave.” He told them that the

plaintiff’s denials that the gardaí had accurately recorded what he said in custody over seven days was a matter of credibility. He said

that at first he had been counting the denials made by the plaintiff but that he “stopped after thirty.” The trial judge went on:

Now, you heard the evidence. You heard what he said. You heard the gardaí. Do you think he made those statements? If

you think he did make those statements, why do you think he denied making those statements? That is a question of

credibility. And I must point out to you that in no case, save almost in relation to Detective Garda Michael Carr, was it

put to any of the gardaí when they gave evidence in cross-examination by counsel for the plaintiff that in fact the

plaintiff’s version was correct that he didn’t make the statements. It wasn’t suggested to the gardaí by his counsel that

in fact he hadn’t made these statements and that they weren’t an accurate recounting of what he had said when in

Garda custody. These are matters … that you are entitled to draw inferences from. And you are entitled to draw

conclusions from them.

36. The trial judge also told the jury that while the plaintiff denied being “a tax evader and a criminal”, his “counsel in summing up the

matter to you more or less conceded” that status. This was strong by way of comment and to go further might be to take sides; a

dangerous trail not just because it might go so far as to be seen to not be neutral but also because trammelling the jury’s function

can lead to an opposite result.

37. Any warning that needs to be given in a civil jury case is a matter for the trial judge, as is the form of any such warning. This was

the trial judge’s view as to what this case required. It was not inadequate. It went as far as was appropriate.

Duty to cross-examine

38. On this appeal it is complained that there was no challenge to much of the newspaper’s evidence. During the trial, the suggestion

that the plaintiff had a bad reputation was challenged by counter evidence. By contrast, the newspaper says that there was no

effective challenge to the Garda evidence arising out of the interviews. If there had been, by putting for instance a case that the

plaintiff said particular things which were unrecorded, or was exhausted into saying certain things due to repetition, or that he had

been mistreated in a particular way, the jury, counsel for the newspaper argue, would have had an appropriate view of credibility. The

newspaper asserts that “not all challenges are the same, and it is illogical to treat them as if they were.” It is argued that there “was

no effective, reasoned, meaningful challenge to the Garda evidence on any issue”. It is asserted that “it is hard to see how the jury

could realistically have rejected the evidence of what the [plaintiff] said in custody.”

39. For the plaintiff it is claimed that, provided it has been made clear that one party disagrees with the evidence to be given by a

witness to be called by the defendant, the defendant is to be treated in precisely the same way as if he had given a reasoned ground

for disagreeing with the evidence and had then cross-examined the witness on a reasoned basis.

40. It must be correct that it is difficult for counsel to cross-examine a witness who merely says that a person had a particular bad

reputation or was called a mean nickname by certain people. What does counsel put in such a situation? This issue is surely joined, as

it was in this case, by counter-evidence from witnesses who say a plaintiff has a good reputation. Such exchanges, pertaining to the

character of a particular individual, can often turn into an unsatisfying game of assertion and counter-assertion, as one side claims

that the person in question is a latter-day saint while the other side claims that he or she is lawless. One set of bare assertions is

pitted against another, and it may be difficult if not impossible for counsel to engage in meaningful cross-examination of the evidence.

It would also give an opportunity for a witness to positively assert that that plaintiff is what they claim his reputation suggests. In

such circumstances, it may well be permissible for counsel to engage in minimal cross-examination. However, evidence that a person

made admissions and other statements in Garda custody is another matter. The plaintiff denied these. It was incumbent on counsel

for Martin McDonagh to put a minimum of the reasons for those denials to the Garda witnesses in cross-examination. That process

does not have to be long. In McNamee v Revenue Commissioners [2016] IESC 33, the judgment of Laffoy J approves the decision of

the House of Lords in Browne v. Dunn (1893) 6 R 67 which is encapsulated in the following statement of Lord Halsbury at pages 76-

77:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have

given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity often to defend

their own character, and not having given them such an opportunity, to ask the jury afterwards to disbelieve what they

have said, although not one question has been directed either to their credit or to the accuracy of the facts they have

deposed to.

41. The extent to which fairness requires cross-examination is essentially dependant on how a trial runs. Fairness, however, is what

the law requires both in relation to procedures that are dedicated towards achieving a correct conclusion in a trial and in relation to

the right of a witness to be given a real opportunity to comment on a verdict the implication of which may only be interpreted as

adverse. Here there was such a conclusion. If the Garda evidence as to statements had been accepted, then certainly the jury’s

verdict that it had not been proven that the plaintiff was a loan shark would be impossible. Hence, it is clear that the sworn Garda

testimony on this issue was rejected. As to the drug dealing allegation, the jury’s verdict did not carry that implication as, unlike the

loan sharking issue, the plaintiff was not recorded in Garda interviews as at all agreeing that he was drug pushing. But, equally, it

must be pointed out the paucity of any challenge to the Garda testimony by counsel for the plaintiff. There is a minimum standard

here that must be observed. Certainly, the plaintiff’s evidence began the case and, equally, he made the case that one Garda had

somehow mistreated him. What were his instructions? Surely the particular passages disputed should have been highlighted in cross-

examination and surely the reasons for the dispute, misunderstanding by the interviewing officers or perhaps a malicious fraud should

have been put on his behalf. It only needs a few sentences putting core instructions as a matter of a few questions. Were that done,

the procedures would have been fair since, then, there would have been an aspect of what was wrong with the interviews according

to the plaintiff and what the Garda response was. Laffoy J also approved another passage from Browne v. Dunn, that of Lord

Herschell LC at page 71. There, he stated a rule that if you intend to impeach a witness, you are bound, whilst that testimony is live,

to give that witness an opportunity of making any explanation which is open. This was characterised as not only a rule of professional

practice in the conduct of the case, but as essential to fair dealing:

… but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to

him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean

upon a point which is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to

impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in

which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be

impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is

that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity to give

an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not

accepted.

42. The core of what happened at trial was this. Detective Garda Eddie McHale gave evidence for the newspaper of the truth of

notes of particular interviews. He was asked by counsel for the plaintiff if he had been the source of the leak to the Sunday World or,

if not, whether he knew who was. While this may have impacted on the credibility and professionalism of certain members of the

gardaí involved in the investigation, it had nothing to do with the issues in the case. He said that he had never spoken to the author

of the article, though he said “I respect him.” He was asked to confirm that the plaintiff refused to sign any of the Garda notes and

acknowledged that the plaintiff had asserted that the interviews were “off-the-record”. He accepted that 7 days detention was “very

tough” and that the plaintiff had little formal education. Certain aspects of the interviews were affirmed in cross-examination as being

accurate, for instance the denial of drug dealing, but as for the rest there was no challenge pertaining to how the gardaí were

apparently making up statements against him. If that was indeed the plaintiff’s case – that the gardaí had essentially fabricated

evidence – it is impossible to know from the case put by plaintiff’s counsel. Detective Garda Vincent McKeown similarly gave evidence

for the newspaper about what the plaintiff had said in Garda detention. Cross-examination on behalf of the plaintiff focused on the

unlikelihood of a man drinking 13 pints of beer and then going on a drug dealing trip to London. Detective Garda Pauline McDonagh

testified as to the plaintiff’s reputation. In cross-examination she was asked on behalf of the plaintiff if anyone other than Garda

members were going to give such evidence. That was a fair line of enquiry. Detective Garda Thomas Doherty gave evidence as to the

interviews. His limited cross-examination about the plaintiff’s tiredness during the interviews has been already noted. A discussion on

that point is materially different to the issue of the gardaí making up false admissions. That was never put. He was principally asked

about leaks of information to the newspaper and what he did or did not know about any such leaks. Detective Garda Michael Carr

testified about the plaintiff’s interviews. The cross-examination for the plaintiff focused on the statements in those interviews that he

was innocent. Again, not a single question was put about why, or in what circumstances, the gardaí would falsify those large swathes

of notes with which the plaintiff disagreed. At the end, counsel for the plaintiff simply says: “I suppose I’d better formally put it to

you that [the plaintiff] has disputed the contents of a lot of the interviews, you say they are your notes?” To which the witness

answered: “They are my notes in my writing, yes, my Lord.” There was a classic opportunity to challenge what was not agreed and

this was not taken. Detective Garda John McHale was another witness to the interviews. Curiously, it was counsel for the newspaper

that put it to him that he “had pulled a bandana” off the head of the plaintiff’s daughter and that he had given the plaintiff a “hard

time” in custody and had “called him a scumbag”. He denied this. Why was there no such cross-examination or any engaging with the

real issue of veracity of these statements by counsel for the plaintiff? Again, the cross-examination was about who said what to the

Sunday World. Detective Garda William O’Neill gave evidence of the arrest of suspects and other matters. The cross-examination was

about how the article in the Sunday World was drawn to the attention of the plaintiff in Garda custody. Detective Garda Oisín

McKeown testified about the Criminal Assets Bureau in relation to the plaintiff and about the substantial lodgements to accounts

controlled by him. There was no difficulty with the way that evidence was dealt with. Similarly, the same comment may be made

about other financial evidence given and the plaintiff’s response to it. Finally, Sergeant Connell Lee gave evidence that the plaintiff

had a reputation in addition to being a drug dealer, which the other gardaí had testified to, of being also regarded as being “involved

in social welfare scams in London and throughout England” and of his nickname and reputation as a loan shark. The cross-examination

again focused on the alleged Garda leak to the Sunday World.

43. This was unsatisfactory. The cross-examination in relation to the statements did not have to be long but it did have to put the

basic elements of the plaintiff’s regarding whether gardaí had made up statements and ascribed them to him or whether the plaintiff

had gotten so tired in Garda custody that he did not know what he was saying or whether he was mistreated. Instead, a mere issue

of ‘who leaked what’ assumed a false dominance.

44. The satisfactoriness of a trial should, however, be looked at in the round. There is another aspect to this. Counsel for the

newspapers could have asked for the jury to be sent out at the end of the first cross-examination dealt with above and, in their

absence, pointed out to the trial judge the error in approach. It could then have been corrected by the cross-examination continuing

for a short time with the essentials of why the interviews were denied being put. Then the jury would know that it was fabrication,

mistake, tiredness or whatever. Central to an adversarial system is making the point that ensures that the trial abides by the rules

and making that point at the appropriate time. There could also have been a requisition on this specific point or the opening of the

relevant case law. Finally, it was clear, despite the unsatisfactory nature of the approach to cross-examination by counsel for Martin

McDonagh what case was being made. In the overall aspect, there is not quite enough here to dismiss this lengthy trial as so

unsatisfactory as to require a retrial.

Order

45. Under section 7(1) of the Courts (Supplemental Provisions) Act 1961, the Supreme Court holds full appellate jurisdiction to hear

appeals from lower courts as prescribed by the Constitution. The Court of Appeal has been given full appellate jurisdiction from the

High Court decisions, however; no automatic right of appeal exists to the Supreme Court, though appeals may be heard as a result of

a direct application from the High Court to the Supreme Court. The Supreme Court may also hear appeals from the Court of Appeal.

These are provided for in the constitution in Articles 34.5.3 and 34.5.4. In both cases, the appeals must involve either a matter of

general public importance or be in the interests of justice as to warrant an appeal to the Supreme Court. After the Thirty-Third

amendment to the constitution, the Supreme Court can exercise more control over the appeals it hears. The Thirty-Third amendment

to the constitution did not alter the original jurisdiction of the Court. Section 48 of the Courts (Supplemental Provisions) Act 1961

provides for the Rules of the Superior Court which contain the powers of the Supreme Court on hearing an appeal. These rules were

implemented by Statutory Instrument 15/1986. Order 58 rule 29 of the Rules of the Superior Courts, provides that subject “to the

provisions of the Constitution and of statute” the Supreme Court may “exercise or perform all the powers and duties of the court

below” and “may give any judgment or make any order which ought to have been made and may make any further or other order as

the case requires.” The former rule was Order 58 rule 9.

46. The Court of Appeal was incorrect in the order which it made. That order must be reversed in full.

47. Noting that the second unanswered jury question may be relevant and mindful of the passage of time back to the relevant

events, which is now close to 18 years, it is proposed to hear counsel on the jurisdiction of this Court; with particular emphasis as to

the whether another hearing on this matter is needed as to the issue of question 2 or as to damages or as to whether the High Court

should rehear the matter.