Supreme Court reduces excessive defamation damages from €900,000 to a proportionate sum despite defendant's criminal record.

THE SUPREME COURT

Record No. S:AP:IE:2016

Denham C.J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O’Malley J.

Between/

Martin McDonagh

Plaintiff/Appellant

and

Sunday Newspapers limited

Defendant/Respondent

Judgment delivered the 27th day of July, 2017 by Denham C.J.

1. This is an appeal by Martin McDonagh, the plaintiff/appellant, who is referred to as “Mr. McDonagh”. Sunday Newspapers Limited,

the defendant/respondent, is referred to as “the Newspaper”.

Article

2. Mr. McDonagh claimed that he was libelled in an article entitled “Traveller is new drug king”, published by the Newspaper on the 5th

September, 1999. The article described a seizure of hash and ecstasy worth IR£500,000 in Tubercurry, County Sligo, on the 30th

August, 1999. The article identified Mr. McDonagh as the man behind the incident, a drug baron, a person who had amassed a fortune

without any visible means of income, a moneylender, and a criminal.

Proceedings

3. Mr. McDonagh issued proceedings on 17th January, 2000. A statement of claim was received on the 2nd February, 2000, which

claimed that the article in its natural and ordinary meaning inter alia meant that Mr. McDonagh

a. is a criminal

b. is a drug dealer

c. is a tax evader

d. is a loan shark

4. The Newspaper served its defence in April, 2002, which pleaded justification and qualified privilege.

The High Court – Judge and Jury

5. The trial of these proceedings commenced on the 20th February, 2008, before de Valera J. and a jury, and ran for five days.

6. During the trial it was accepted by Mr. McDonagh that he was a tax evader and a criminal.

The Issue Paper

7. The issue paper for the jury was answered as follows:-

Question 1: Has the [Newspaper] proved:

i. that [Mr. McDonagh] is a drug dealer?

Answer: No

ii. that [Mr. McDonagh] was a loan shark?

Answer: No

iii. that [Mr. McDonagh] was a tax evader?

Answer: Yes

iv. that [Mr. McDonagh] 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 [Mr. McDonagh’s] reputation having regard to the truth of the remaining charges?

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

€900,000.

The Court of Appeal

9. The Newspaper appealed to the Court of Appeal. On the 19th October, 2015, the Court of Appeal (Kelly, Irvine and Hogan JJ.)

allowed the Newspaper’s appeal against the entirety of the jury verdict.

10. Hogan J. held, in conclusion, that the jury verdict so far as it concerned the drug dealing allegation could not be allowed to stand.

He held that the evidence overwhelmingly pointed to the conclusion that Mr. McDonagh was a drug dealer associated with the drugs

seizure at Tubercurry. He stated:-

“If the allegation was correct, the Newspaper had a constitutional right to publish this information by virtue of Article 40.6.1.i and

that right cannot be compromised by a jury verdict which was, in essence, perverse.”

11. As to the issue of loan sharking, Hogan J. held that it was more limited, that it might have been open to a properly instructed jury

to find for Mr. McDonagh on that allegation. He described appropriate instructions, but held that as the jury was not so instructed,

that the verdict on the loan sharking allegation could not be allowed to stand. Thus, the Court of Appeal allowed the Newspaper

appeal against the entirety of the verdict. Hogan J. held that as the drug dealing allegation was found to be true, that part of Mr.

McDonagh’s claim would be dismissed. He directed a new trial on the loan sharking allegation. He pointed out that it was therefore

unnecessary for him to address the issue of quantum of damages.

12. As to the lack of a written answer to Question 2 on the issue paper for the jury, Hogan J. held that it was impossible to know how

or why the jury failed to answer “an essential question which they were required by law to answer.” He held:-

“Quite independently of any other consideration this in itself would have been enough to justify the setting aside of

the jury verdict, as it cannot be said that the jury returned a verdict in accordance with law or that they gave any

consideration to the implications of a defence which the law afforded to the newspaper.”

The Determination

13. Mr. McDonagh sought leave to appeal from the Supreme Court. In a determination dated the 18th February, 2016, [2016]

IESCDET 27, the Supreme Court granted leave to appeal on five grounds. It was decided:-

“9.2. … in the view of the Court, the following issues arise as being issues of general public importance, or that it is

in the interest of justice that they should be determined by this Court. These are (a) 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; (b) 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; (c) whether it was necessary for the jury to be warned by the

trial judge that, objectively speaking, the plaintiff’s credibility had been compromised; (d) 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; (e) the present legal status in the State of the rule in Browne v. Dunn, 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.

9.2. In the view of the Court, these are issues which each reach the constitutional threshold. (a) to (c) deal with

constitutional rights of free expression, and the role of juries in defamation proceedings. (d) deals with the power of

an appeal court to reverse jury verdicts. (e) deals with an important evidential rule. Each of the matters is of

general public importance, and is also matters where the interests of justice very clearly arise in this, and other

cases. The Court, therefore, grants leave to appeal under Article 34.5.3 of the Constitution, on each of the grounds

(a) to (e) set out above, and the Court so orders.”

The Supreme Court

14. The majority decision of the Court, was delivered by Charleton J. McDonagh v, Sunday Newspapers Limited [2017] IESC 46.

Having analysed the trial in the High Court, and the decision of the Court of Appeal, he held that the Court of Appeal was incorrect in

the order which it made, and that its order must be reversed in full.

15. Charleton J. concluded:-

“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.”

Submissions

16. The Court invited written submissions on these issues, and also heard oral submissions.

17. The issues before the Court included (a) whether another hearing is needed on the issue of Question 2 of the issue paper; (b)

damages; (c) whether the High Court should rehear the matter.

Question 2

18. On the 6th March, 2008, the High Court (de Valera J.) recorded the following questions as having been put to the jury and the

answers as:-

“The following question having been put to the Jury

1. Has the Defendant proved:

a) That the Plaintiff was a drug dealer.

Answer

b) That the Plaintiff was a loan shark.

Answer

c) That the Plaintiff was a tax evader.

Answer

d) That the Plaintiff was a criminal

Answer

If the answer to all parts of Question 1 is yes, proceed no further.

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?

If the answer to 2 is no, proceed no further

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

and having been answered as follows:

Question 1)

a) No

b) No

c) Yes

d) Yes

Question 2) Yes

Question 3) €900,000”.

19. The High Court then ordered the Newspapers to pay €900,000 damages to Mr McDonagh, and costs. The Newspapers undertook

to pay Mr. McDonagh €90,000 on account of the damages, and 10% of the taxed costs, and ordered interest on the balance of the

damages as may ultimately be payable at the statutory rate of interest. The High Court placed a stay on the execution of the

balance of the order until the final determination.

20. On the 30th January, 2009, the High Court (de Valera J.) amended the first order to record that there was no answer to Question

2. Question 2 – Jurisdiction – Submissions by the Newspaper

21. Counsel for the Newspaper submitted that the Supreme Court did not have jurisdiction to answer Question 2. It was submitted

that Question 2 is based on s.22 of the Defamation Act, 1961, which provides the defence of justification – a complete defence.

Thus, it was submitted, it was vital that the jury answer Question 2.

22. It was submitted that a question was asked clearly and should have been answered. It was submitted that we simply cannot

know what the jury did, that any inference would only be a supposition. While the jury may have understood the question and

proceeded, it was submitted that there was a strong possibility that the jury did not understand Question 2, and thought it was

entitled to ignore it.

23. It was argued that the charge was not such as to enable this Court to exclude the possibility that the jury misunderstood

Question 2.

24. It was submitted that the jury may not have understood the nature and quality of the exercise involved in weighing up and

comparing the meanings in Question 1, on the evidence.

25. In all the circumstances, the Newspaper submitted that the Court should not be content that the verdict of the jury was reached

in accordance with law, and that there was no option but to set aside the verdict.

26. It was submitted that it would not be proper for this Court simply to answer Question 2, as if it were the jury. That would involve

the Court putting itself in the place of the jury and assessing evidence.

27. This Court must adapt the same approach of the Court of Appeal, it was submitted, and set aside the jury verdict.

28. Furthermore, it was submitted, if there is to be a retrial it must be a retrial on all issues, including two of which the jury found in

favour of Mr. McDonagh at the trial.

29. It was submitted that Question 2 was before the Court of Appeal, but that its finding were not part of the ratio decidendi of the

decision, due to its findings on Questions 1(a) and (b). That the Court of Appeal had held obiter that the jury’s failure to answer

Question 2 would have been enough to set aside the jury verdict, had it come to it.

30. Also, that the Court did not address Question 2 in the Determination. Thus, it was argued, the issue of Question 2 requires an

order of the Court of Appeal, and a grant of leave to appeal to the Court, before the Supreme Court could decide the issue.

31. Counsel for Mr. McDonagh made submissions arguing that the jury had, in fact, answered Question 2. In the alternative, that the

only reasonable inference is that the jury had in fact answered Question 2. In the alternative, that the only reasonable inference is

that the jury intended to answer Question 2 in the positive.

Question 2 – decision

31. I have considered carefully the oral and written submissions of the parties on the issue of Question 2, and I am satisfied that the

submissions made on behalf of Mr. McDonagh presented the correct analysis.

32. Thus, I am satisfied that the jury did answer Question 2, and did so positively. This follows from the wording on the issue paper,

and the manner in which the questions were answered by the jury. Questions 1, 2 and 3 were sequential and cross referable. Thus

Question 1 asked:-

“1. Has the Defendant proved:

a) That the Plaintiff was a drug dealer.

Answer

b)That the Plaintiff was a loan shark.

Answer

c) That the Plaintiff was a tax evader.

Answer

d) That the Plaintiff was a criminal

Answer

If the answer to all parts of Question 1 is yes, proceed no further.

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?

If the answer to 2 is no, proceed no further

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

The only place where the word “Answer” appeared with a blank space beside it was after Question 1 (a), (b), (c), (d).

The jury was told on Question 1

“If the answer to all parts of Question 1 is yes, proceed no further.”

However, the jury had answered some questions “yes” and some questions “no”. The issue paper addressed the jury on Questions 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?”

We know that the jury’s answer was a mixture of “no” and “yes”.

The jury is told in Question 2:

“If the answer to 2 is no, proceed no further.”

Thus they were instructed that if the answer was “no” they were to proceed no further. But the answer was, partially “yes”, and

partially “No”, and this is addressed in Question 3, which required of the jury:-

“3. If the answer to 2 is yes, assess damages.”

Thus the answer to Question 2 is found in the answer to Question 3, i.e. the assessed damages. Therefore, the jury did answer

Question 2.

33. Also, if the answer to Question 2 was “no”, it would not have written “no”, but merely followed the instruction to “proceed no

further.”

34. The fact that the jury assessed damages shows that the jury understood and answered Question 1 with “yes” and “no” at the

various sub questions, answering Question 2 by reading it and proceeding, as required, under Question 3 to assess damages.

35. Thus, it is not a question of seeking any inference as to what the jury did or did not do. The jury followed the instructions on the

issue paper and answered the questions.

36. Consequently, it is not a situation where the Court is making any supposition as to what the jury did.

Not in determination

37. An issue raised is whether the Court has jurisdiction on the issues of Question 2 and damages as they were not expressly stated

in the determination.

38. In all the circumstances, while Question 2 was not expressly referred to in the Determination, it is a logical consequence of the

appeal which has opened, and been argued at length before the Court.

39. I am satisfied that the Supreme Court has jurisdiction, and indeed a duty, to decide consequential issues in an appeal. In this

case Question 2 falls into that category.

40. For the reasons given, I am satisfied that the jury did answer Question 2, in the affirmative, and proceeded to assess damages.

Thus, the argument made on behalf of the Newspaper fails.

41. In the circumstances, it is open to the Court to consider the issue of damages.

Damages

42. The jury awarded €900,000 damages to Mr. McDonagh. The High Court granted a stay, imposing a term whereby the newspaper

was ordered to pay interest from the date of judgment at the statutory rate of interest on judgment debts, as may be applicable from

time to time, on the balance of any damages ultimately found to be payable. Counsel for the Newspaper submitted that if this Court

upheld the award of €900,000, and upheld also the part of the order providing for the payment of interest, then a further sum of,

perhaps, €645,000 would become payable, being a total of €1,545,000.

Newspaper Submissions on Damages

43. The Newspaper submitted, inter alia, that the damages awarded were disproportionate. Counsel for the Newspaper referred to

jurisprudence from the ECtHR, which emphasised that large and unpredictable awards required careful scrutiny given their chilling

effect on freedom of speech. It was submitted that it was a special concern in a time of falling circulation of mainstream newspapers,

which, it was stated, “have a particular responsibility for the gathering and dissemination of reliable news”.

44. Counsel referred to the recent decision of the ECtHR which addressed the process in Ireland, of the award of damages in

defamation cases, in Independent Newspapers (Ireland) Limited v. Ireland, Application No. 28199/15, Strasbourg 15 June 2017. The

ECtHR considered, amongst other issues, the adequacy and effectiveness of the domestic safeguards against disproportionate

awards.

45. Counsel for the Newspaper submitted that the above case addressed the issue of the process.

46. Counsel stated that the test, however, was one of proportionality. The real question was how the Court was to assess

proportionality. Counsel referred to (a) the gravity of the libel, (b) the extent of publication, (c) the conduct of the Newspaper, and

the impact of the defamation. Counsel argued that the damages awarded by the jury fails the proportionality test.

47. Inter alia, counsel for the Newspaper submitted that the order dealing with interest was unfair and inappropriate.

48. Counsel submitted that if this Court were to find that the damages were excessive, that this does not mean that it would be

necessarily appropriate for this Court, if it agrees that the damages awarded by the jury were excessive, simply to substitute its own

award. Counsel accepted that the Court has such jurisdiction (pointing out that it did so in McEntee v. Quinnsworth, (Unreported,

Supreme Court, 7th December, 1993); in Crofter v. Genport Properties (No. 2) [2005] 4 I.R. 28 (where there was no jury in the High

Court), and in Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214; [2014] IESC 79. However, counsel argued that

in this case it would be preferable to have a re-trial. And, if there is to be a re-trial on the issue of damages, there should be a re-

trial on all issues, not just damages.

Mr. McDonagh’s Submissions on Damages

49. Counsel for the appellant submitted that the jury had awarded Mr. McDonagh very substantial damages. However, that fact

alone, it was argued, does not mean that the award should not stand. Counsel opened relevant case law and submitted that jury

assessments of damages should only be disturbed in exceptional cases.

50. Counsel for Mr. McDonagh submitted that, in the circumstances of this case, given the gravity of the libel, the effect on Mr.

McDonagh, the extent of the publications, and the conduct of the Newspaper, it warranted a very substantial award.

51. It was submitted that while the award of damages was high, it was not disproportionate. To be accused of loan sharking is a very

serious defamation.

52. Mr. McDonagh gave evidence of the affect of the defamation on his family. He feared for his life. Posters were put up around Sligo

about him. His life was turned upside down. His friends have gone. He was no longer served in any bar in Sligo. Mr. McDonagh’s

daughter said the defamation tore their family apart.

53. As to the extent of the publication, it was published in the biggest selling newspaper, with front page headlines, including,

‘Millionaire’, ‘Drugs King’ and ‘The Shark’.

54. As to the Newspaper’s conduct, it was published while Mr. McDonagh was midway through a seven day investigation by the

Gardaí, and there was no attempt to seek a comment from Mr. McDonagh.

55. It was argued also on behalf of Mr. McDonagh that the fact that the Newspaper persisted in a plea of justification was a serious

factor.

56. Counsel for Mr. McDonagh submitted that this Court should determine finally this matter after 18 years. It was submitted also that

the enormous costs incurred in the litigation to date, and the undesirability of adding to those costs through a re-trial is a factor to

be considered.

Damages – decision

57. The amount of damages must be fair and proportionate to both a defendant and a plaintiff.

58. The assessment by a jury of damages for defamation “has had a very unusual and emphatic sanctity”: Barrett v. Independent

Newspapers Ltd [1986] I.R. 13 at p. 19.

59. Appellate courts have been slow to interfere with assessments by juries in defamation cases. However, if the award is so

disproportionately high the award should not stand. As Henchy J. stated in Barrett v. Independent Newspapers Ltd [1986] I.R. 13 at

p. 24

“In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the

relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not

be allowed to stand.”

60. In de Rossa v. Independent Newspapers plc [reference] Hamilton C.J., giving the majority decision, held:-

“…, an appellate court should only set aside an award made by a jury in a defamation action if the award made is

one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be

disproportionate to the injury sustained.”

61. In that case Hamilton C.J., assessed the gravity of the libel, the effect of the publication, and the conduct of the defendant.

62. Hamilton C.J. dismissed the appeal, stating:-

“The jury assessed damages in the sum of £300,000. This is a substantial sum but the libel was serious and grave

involving an imputation that the plaintiff was involved in or tolerated serious crime and that he personally supported

anti-semitism and violent communist oppression.

Bearing in mind that a fundamental principle of law of compensatory damages is that the award must always be

reasonable and fair and bear a due correspondence with the injury suffered and not be disproportionate thereto. I

am not satisfied that the award made by the jury in this case went beyond what a reasonable jury applying the law

to all the relevant considerations could reasonably have awarded and is not disproportionate to the injury suffered

by the plaintiff.”

63. In that case, in a dissenting judgment, I indicated that I favoured the giving of guidelines to a jury on the level of damages. I

stated that that information does not fetter discretion; such an approach is in the interests of justice; that the Legislature could

legislate, but in its absence more guidelines would help juries and the administration of justice. I concluded:-

“In principle it is open to the court to provide guidelines on the charge to be given by a judge to a jury in libel

cases. Guidelines on levels of damages given by a judge would aid the administration of justice. Guidelines would

give relevant information and aid comparability and consistency in decision-making. Such guidelines would relate

only to the level of damages – not the kernel issue as to whether or not there had been defamation. Thus, such

guidelines would not impinge on the area traditionally viewed in common law jurisdictions as a matter

quintessentially for the jury. More specific guidelines on the level of damages would help juries and the

administration of justice by bringing about more consistent and comparable awards of damages and awards would

be seen as such. Specific guidelines would also inform an appellate court in its determination as to whether an

award is reasonable and proportionate. The award in this case was excessive and on the principles of

reasonableness and proportionality I would reduce it to £150,000.”

This judgment of 1999 was ten years before the Defamation Act 2009.

64. As Dunne J. stated in Leech v. Independent Newspapers (Ireland) Limited [2014] IESC 79:-

“This is a case which pre-dates the enactment of the Defamation Act 2009 which introduces new provisions, inter

alia, in relation to damages particularly, in relation to the directions to be given to a jury by the trial judge in

respect of a trial in the High Court and the matters to which regard shall be had in assessing damages. Prior to the

2009 Act, the trial judge was limited as to the directions that could be given to a jury on the subject of the

quantum of damages. The assessment of damages was and remains a matter entirely for the jury but by virtue of

the provisions of the 2009 Act it is now possible for the trial judge to give more detailed directions to a jury as to

the assessment of damages. The position was different when these proceedings came to trial before the High

Court.”

65. This appeal also was heard in the High Court before the 2009 Act.

66. In Independent Newspapers (Ireland) Limited v. Ireland the ECtHR stated:-

“84. The starting point when assessing whether the interference complained of was necessary in a democratic

society is whether the amount of damages was unusual by domestic standards. This it clearly was, and the parties

did not dispute it. In the High Court, the quantum of damages was much higher than any previous award in a

defamation case. Likewise, the final award was far in excess of any the Supreme Court had previously allowed to

stand. The unusual size of the award, at first instance and on appeal, is such as to trigger the Court’s review of the

adequacy and the effectiveness of the domestic safeguards against disproportionate awards (Independent News

and media, cited above, paragraphs 113, 115 and 118, and Tolstoy Miloslavsky, cited above, paragraphs 49-51).

85. As the Court has indicated previously, it is not necessary to rule on whether the impugned damages’ award had,

as a matter of fact, a chilling effect on the press. As a matter of principle, unpredictably large damages’ awards in

libel cases are considered capable of having such an effect and therefore require the most careful scrutiny (see,

amongst other authorities, Independent News and Media, cited above, paragraph 114, and MGN Limited v. United

Kingdom, no. 3940/04, paragraph 201, 18 January 2011).

…

90. The Court has recognised that a considerable degree of flexibility may be necessary to enable juries to assess

damages tailored to the facts of the particular case (see Tolstoy Miloslavsky, paragraph 41). Nevertheless, it has

also stressed the important role played by the trial judge’s direction in a trial by jury, whether civil or criminal (see,

for example, Simon Price v. United Kingdom, no. 15602/07, paragraph 34, 15 September 2016, and Dallas v. United

Kingdom, no. 38395/12, paragraph 75, 11 February 2016). In the specific context of defamation cases, while the

jury’s assessment of damages may be inherently complex and uncertain, the uncertainty must be kept to a minimum

see Independent News and Media, cited above paragraph 114) and the nature, clarity and scope of the directions

provided to the jury – considering moreover the “unusual and emphatic sanctity” attached to jury awards in

defamation cases under domestic law (see paragraph 24 above) – are key in this regard. In the instant case the

trial judge had to operate under the strict constraints imposed by the Supreme Court’s case-law. As a result, his

directions remained inevitably quite generic, which, as is clearly reflected in his charge to the jury and his

subsequent exchange with counsel, caused him both frustration and regret (see paragraphs 17 – 18 above).

91. In the independent News and Media case, the Court identified two concrete indications in the charge to the jury

in those proceedings (see Independent News and Media, cited above, 123). This served to distinguish that case

from the Tolstoy-Miloslavsky case, in which the Court found that the scope of judicial control at trial did not offer

adequate and effective safeguards against a disproportionately large award.

92. The Court observes that the traditional limitations on providing more specific guidance to the jury regarding the

level of the award applied in the present case as they did in the Tolstoy Miloslavsky and Independent News and

Media cases (see 122 of the latter judgment). However, the type of concrete indications identified in the latter

case are not to be seen in the present case. While it cannot be said that the jury’s discretion was without limit, the

Court does not consider that the direction given in this case was such as to reliably guide the jury towards an

assessment of damages bearing a reasonable relationship of proportionality to the injury sustained by Ms L. to her

reputation and private and family life. Therefore, and as evidenced by the Supreme Court finding that the jury

award was excessive and disproportionate, the first safeguard referred to in paragraph 1134 of the Independent

News and Media judgment proved ineffective.”

67. The direction given in the High Court in this case was similar to that in the above case and consequently, on the issue of the

process, the above case is relevant. It raises a concern that, in the circumstances, the direction given in this case was not such as

to reliably guide a jury towards an assessment of damages bearing a reasonable relationship of proportionality to the injury sustained

by Mr. McDonagh.

68. On the issue of jurisdiction, the issue of damages was argued before the Court of Appeal, even if not decided.

69. Therefore, in all the circumstances, which include the fact that the issue was argued in the Court of Appeal, the guidance from

the ECtHR, the time which has run since the publication of the defamation, the costs which have been incurred and the further costs

which would be incurred on a re-trial, plus the issue that any retrial would reasonably have to be a full re-trial, with possible appeals,

it would be a fair administration of justice to assess the damages in this Court.

70. In considering the sums awarded in previous cases on defamation, the sum awarded by the jury, €900,000, is not proportionate.

71. In assessing what is proportionate I have considered:-

(a) the gravity of the libel;

(b) the effect on Mr. McDonagh;

(c) the extent of the publication;

(d) the conduct of the Newspaper.

Relevant factors include also the fact that Mr. McDonagh had a criminal record, had evaded tax, and had entered a settlement with

the Criminal Assets Bureau. In addition, there was evidence which was not disputed, in relation to Mr. McDonagh and drugs. Thus, Mr.

McDonagh did not enjoy a good reputation. However, this did not give a licence to defame him. It is, however, relevant to the

assessment of damages.

72. In assessing the matters of proportionality and reasonableness of damages in the future, the 2009 Act is now relevant. In this

case, where the 2009 Act does not apply, it is helpful to keep in mind factors such as, including but not limited to, the value of

money, the average wage, and the cost of a car. The awards given in personal injuries cases have some relevance. As there are

usually high special damages awarded in very serious injuries, this may cloud the comparison. However, such awards may be part of a

check list in considering the overall reasonableness and proportionality of an award.

73. I am satisfied that the award of €900,000 damages, was excessive.

74. In all the circumstances, a fair, reasonable and proportionate award of damages would be a very substantially reduced sum, much

nearer to the figure proposed by the Newspaper.

75. I agree with the judgments of O’Donnell J. and Dunne J.