Defamation retrial ordered due to disproportionate damages and justification issues despite prior ECHR violation finding.

THE SUPREME COURT

[Appeal No. 92/2015]

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 (No. 2) of Mr. Justice William M. McKechnie delivered on the 27th day of July, 2017

1. Immediately prior to the intended delivery of this judgment, the Court was informed that all matters had been compromised

between the parties and that a final settlement of this litigation had been reached. As part of this compromise it was agreed between

the parties that the Court would be asked not to deliver judgment, and so an application to that effect was made. However, because

the judgments which were about to be delivered dealt with matters which are of general public importance, the Court decided to

proceed as originally planned, subject only to an agreement by those who intended to nominate a specific damages figure, not to do

so.

2. As drafted, the first paragraph of my judgment read:

“This case is in a mess: I do not propose adding any contribution to that. Though not without some unfortunate

consequences, I believe the only course open is to order a re-trial on all issues. I would hope that such can be

done more expeditiously than the timeline of the original case, and I cannot see any reason why that would not be

so.”

Whilst I am relieved that matters have been resolved, the fact that it took almost 18 years to do so and was arrived at only minutes

before judgment was due to be delivered is added testament to the view which I have just expressed.

3. In my first judgment in this case (McDonagh v Sunday Newspapers Limited [2017] I.E.S.C. 46, referred to in this judgment as

“McDonagh No. 1”), I have set out details of the evidential landscape as painted before the High Court, the questions which were

answered by the jury and those which were not, the resulting Order of the trial judge, de Valera J., the decision of the Court of

Appeal, the issues upon which leave was given to further appeal to this Court and the important issue upon which it was refused

(para. 6, infra). Save for some necessary background context, I do not therefore propose to repeat any of those matters in this

judgment.

4. To briefly recap:

The High Court

(i) Subject to a justification plea, it was accepted that the newspaper article in question, was, as to meaning,

defamatory of the plaintiff by reference to the allegations as asserted.

(ii) The jury decided that such plea was sustainable in respect of allegations 3 and 4, being that he was a tax

evader and a criminal, respectively, but that it had failed in respect of the appellant being either a “drug dealer” or

a “loan shark” (allegations 1 and 2) (para. 10 of McDonagh No. 1).

(iii) It then proceeded to award Mr. McDonagh €900,000 damages without having answered, at least ex facie, the

second question asked of it on the issue paper, which question was directly based on the provisions of section 22

of the Defamation Act 1961 (“Question No. 2” or “the section 22 issue”), being part of the statutory regime

applicable to this case.

The Court of Appeal ([2015] I.E.C.A. 225)

(iv) On the defendant’s application the Court of Appeal not only set aside the jury’s verdict on perversity grounds in

respect of allegation 1, but went on to affirmatively hold that the evidence inescapably established that the plaintiff

was in fact a drug dealer: it then so declared him to be. Likewise, the Court set aside the jury’s decision on the loan

shark allegation but, for reasons not material, ordered a re-trial on that matter.

(v) On Question No. 2, the Court was satisfied that such question had not been answered, in circumstances where

the jury was obliged to do so. Despite the submission that an answer could be inferred, Hogan J., with whom the

other two members of the Court agreed, could not be satisfied that such was the case.

(vi) As a result, the judgment continued as follows at para. 103 thereof:

“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.”

(vii) This view, in the context of the original trial, was obiter, in that a retrial had been ordered on other grounds.

Moreover, as the Court of Appeal had ordered a retrial on a single defamatory meaning only, section 22 of the 1961

Act could have no effect on that retrial. However, what the quoted observation was intended to convey was that

even if there were no other grounds to order a retrial, the failure to answer Question No. 2 would in itself have been

sufficient to make an order to that effect.

(viii) The Court of Appeal offered no view on the question of damages. I make this point only because of a

suggestion advanced before this Court that the issue of damages was still live before the Court of Appeal. I do not

accept that this is so, as the entire foundation of the damages claim disappeared with the Court’s view on the drug

dealing and loan shark allegations.

The Supreme Court

(ix) This Court granted leave for a further appeal on five questions. One related to the status of the rule in Browne

v. Dunn (1893) 6 R. 67, and a second related to the adequacy of the trial judge’s charge on the plaintiff’s lack of

credibility. Both have been addressed in the judgments delivered by Charleton J. and myself in McDonagh No. 1.

Another two certified questions were answered by this Court’s decision to reinstate the verdict of the jury on the

drug dealing and the loan shark allegations. The fifth and final question, namely, the constitutional point, was dealt

with somewhat differently by Charleton J. and myself, but nothing of continuing impact turns on that distinction.

However, the Court refused leave on the section 22 issue.

Following McDonagh No.1

(x) Following delivery of the judgments of this Court herein referred to, the parties were asked to make further

submissions on “what’s next”, which is my term and not that of the Court. Their attention was specifically drawn to

two matters, namely, whether a further hearing before this Court was necessary on the section 22 issue and/or on

damages, or whether there should be a retrial on one or more of such issues.

(xi) Having received these submissions the Court determined on the 12th July, 2012, that it would hear further

arguments on each of these matters on a de bene esse basis. Such hearing took place on the 19th July, 2017.

(xii) Leaving aside the jurisdictional issue for a moment (paras. 6 and 33 of this judgment), a central point in how

the instant appeal should be finally disposed of is this Court’s decision on whether Question No. 2 on the issue paper

was or was not answered by the jury. That question, which is at least in part critical to how I would now proceed,

reads as follows:

“Question No.2 – Issue Paper

The learned court [i.e. the Court of Appeal] erred in law or in fact in finding that the failure of the jury

to answer the second question would have justified the setting aside of the jury’s verdict.”

(xiii) My conclusion on that matter, its consequences and the other issues arising are the subject matter of this

judgment.

5. Although outlined in summary form above, it is I think helpful to set out in full the relevant part of the issue paper which went to

the jury. That reads as follows:

“QUESTIONS

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 jury’s answers are set out at para. 20, infra.

6. Apart from the very real difficulty which arises from this Court’s refusal to grant the appellant leave to further appeal Question No.

2, a point which I will return to later in this judgment (paras. 33-34, infra), the first question which arises out of that issue is why

such question was left to the jury in the first instance. The answer lies in its substantive provisions and its importance where the

defence of truth is established in respect of some defamatory meanings, but not in respect of others. Its historical context must first

be noted.

Partial Justification at Common Law

7. At common law, it was always possible to separately justify one or more of a number of allegations, which afforded a partial

defence to the publisher (Sutherland v. Stopes [1925] A.C. 47). However, for justification to succeed as a complete defence, it was

necessary to establish the truth of the entire libel. The position therefore was that unless the whole of the libel could successfully be

substantiated, a plaintiff was entitled to damages in respect of any material part which was not proved to be true, provided only that

such part, of itself, formed a substantial element in the overall action (Goodburne v Bowmans 131 E.R. 712; (1833) 9 Bing. 532).

Although of historical antiquity, the case of Helsham v. Blackwood (1851) 11 C.B. 111 at 129 summarised the position accurately:

“To make a good plea to the whole charge, a defendant must justify everything that the libel contains which is

injurious to the plaintiff. If the libel charges the commission of several crimes, or the commission of a crime in a

particular manner, the plea must justify the charge as to the number of crimes or the manner of committing the

crimes.”

Against this background, and noting several other cases of similar vintage and to the same effect, statute intervened. Before

introducing the section, however, it is worth also noting the following in this context.

8. Even where unsuccessful in establishing either a complete or a partial defence of truth, that same evidence could be led in

mitigation of damages. As stated by Neill L.J. in Pamplin v Express Newspapers [1988] 1 WLR 116:

“There may be cases, however, where a defendant who puts forward a defence of justification will be unable to

prove sufficient facts to establish the defence at common law and will be unable to bring himself within the

statutory extension of the defence contained in section 5 of the Defamation Act 1952. Nevertheless the defendant

may be able to rely on such facts as he has proved to reduce the damage, perhaps almost to vanishing point. Thus

a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability,

may be of great importance on the issue of damages.”

See also para. 11.14 of Gatley on Libel and Slander (9th Ed., 1998). This situation directly feeds into the point made at para. 12 of

this judgment.

Section 22 of the Defamation Act 1961

9. Section 22 of the Defamation Act 1961 (“the 1961 Act”), modelled verbatim on section 5 of the English Defamation Act 1952, was

enacted to ameliorate the position of the defendant in the circumstances described. That section reads as follows:

“22. In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff,

a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not

proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining

charges.” (Emphasis added).

This provision has been carried over in substance by section 16(2) of the Defamation Act 2009.

10. There are several aspects of the section which need to be noted:

(i) It is trite law to say that a successful justification plea is a complete defence to a suit in defamation. Where

applicable the section results in a dismissal of the plaintiff’s entire claim. It is thus first and foremost a liability issue.

(ii) It is a moot point as to how the record stands after such provision has successfully been invoked. As in this

case, does the Court file still record the jury’s answers to questions 1(a) and 1(b), or are such answers modified as

a result? The better view is, I think, the former, but if such be the case, do the answers given have any continuing

influence or effect of any description?

(iii) The application of the provision is fact/opinion driven: without a causative diminution in reputation there is

neither libel nor compensatable damage. What the section demands is an exercise by which the relative impact of

those charges which have been established may be weighed or measured against those which have not. There is

therefore a balancing exercise involved.

(iv) Whilst the section does not provide any guidance as to its implementation, it seems clear that the process

demanded involves establishing a respective start point and an end point. If by reason of what is established the

former is substantially the same as the latter, then the charges not established have not materially impacted on the

plaintiff’s reputation, wherever on the vertical scale that might be. If, on the other hand, there is a further

deterioration in reputation, then the section has not afforded the publisher a defence to what was published. It

matters not, on the liability side, where either the start or end points are positioned, provided of course that added

insult has been caused to reputation.

(v) The starting point for compensation of an unsullied character is that the person’s reputation is unblemished,

unstained and intact. To publish the same defamatory statement of a person with a tarnished reputation may not

cause the same harm to that person. I emphasise the word “may”, because some antecedent blemishes may be so

remote from the reputational sting of the libel that the same should be disregarded. In this context, whilst the

seriousness of the unproven allegation is a relevant factor, it is not conclusive and the statutory defence may still

be available even in such circumstances.

(vi) Let’s assume that a plaintiff has been wrongly accused of minor public order offences of a trivial nature but has

also correctly been accused of being a sex offender. It may be difficult to see how the failure to establish the truth

of the former could have any negative impact on the plaintiff’s character as affected by the latter. A second

example along the same lines might be where the plea has failed in respect of a petty theft allegation, but

succeeded in respect of a manslaughter one. It is very difficult to see how the failure of the former and success on

the latter could not afford the publisher a complete defence.

(vii) The case of Cornelius v De Taranto [2001] E.M.L.R. 12 provides a concrete example. The defendant was able

to establish the truth of two allegations, namely, that the plaintiff (i) had lied to a person charged with preparing a

report for a legal claim, and (ii) had a disturbed mental condition which prevented her from dealing with her problems

in a rationale and balanced way. Despite its failure to prove a third, which was that as a 19-year old, some 30

years previously, she had broken into a shop and had stolen goods, and despite the seriousness of this claim,

nevertheless it was held, given its antiquity, that the same did not materially impact upon her reputation in the

context of what was proved to be true. Therefore the claim did not succeed.

11. The section does not appear to have featured heavily in the case law of this jurisdiction. A rare example, however, is the case of

Murphy v. Times Newspapers Limited [2000] 1 I.R. 522, where Keane J. outlined what the common law position was, and the changes

which section 22 of the 1961 Act brought about. Apart from that, however, there was little else said on the provision.

12. A further and important feature of the section, which has practical significance in this case, must be noted. As stated, at the

core of what is involved is an evaluative process of measuring the difference, if any, between the reputation as reflected through the

lens of what has been established, on the one hand, and what has not, on the other. It seems to me to be critical that the same

tribunal of fact is the sole decision maker in this overall exercise. It would not, I fear, be possible to have any semblance of a fair trial

by permitting one tribunal to evaluate the impact on reputation of those allegations which have been proved, and another tribunal to

determine damages in respect of allegations not established. Likewise with any suggestion that a new jury would have to proceed on

the assumption that the answers previously given in relation to the drug dealing and loan shark allegations must remain in place. This

viewpoint is further emphasised by the common law position on the admission of evidence in mitigation of damages even where such

evidence was primarily led in an unsuccessful complete or partial justification defence (para. 8, supra). Whilst this situation has some

unfortunate consequences for Mr. McDonagh, which are referred to at para. 60, below, nonetheless I cannot see how it can be

avoided.

Question 2 must be answered

13. It is, I think, common case amongst all judges of this Court that an answer to Question 2 is essential for the integrity of this

defamation action. Where the difference emerges is that in the judgments of Denham C.J. and O’Donnell J., with whom the majority

agree, they conclude, essentially from the issue paper but also from some surrounding remarks made by the trial judge, that one can

infer the jury’s answer to this question. I respectfully but very firmly come to a different conclusion.

14. It may be useful, at this stage, to set out precisely how the section 22 issue was addressed by counsel for the respective parties

in their closing speeches, and by the trial judge in his charge to the jury. On behalf of the respondent newspaper, counsel stated the

following in relation to question 2:

“Question 2, I will read it out because it looks like a bit of a brain teaser but it has a simple enough explanation.

Question 2 reads:

‘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?’ [The second reference to Question 1 in fact says

Question 2 in the transcript; it is not clear whether this was a spoken error or an error in the recording

of what was said.]

That’s a quote from a section of an Act and is expressed in legalese, but it’s a simple enough idea and it’s this: if

you accuse somebody of four serious crimes but you can only establish that he is guilty of three, you can still win

the case if it doesn’t make any difference that he wasn’t guilty of the fourth crime. So what you have to do when

you are answering question 2 is this: even if you have to answer ‘no’ to some part of question 1, does that make

any difference to Mr. McDonagh’s reputation when you look at the questions to which I answered yes? In my

submission, if a jury comes to the conclusion that a person is guilty of tax cheating on a large scale, of criminality,

of large-scale cheating of the UK social welfare system, of loan sharking at rates of up to 100%, then he is the sort

of person who prays upon the most vulnerable and weak members of society. Those are all despicable crimes.

Now, I am confident that you will find he is a drug dealer, so you won’t come to question 2. But if per chance you

didn’t, I suggest to you that makes no difference. He is a person who has no reputation, deservedly no reputation

because of what he has done.

So to put it in its simple way: if the various things about Mr. McDonagh all mean that he is a serious criminal, does

it make any difference to describe him as a serious criminal in another category too? The answer to that, I suggest

to you, is no.

Now, if you answer 1(a), (b), (c) and (d) ‘yes’, the matter is at an end. If you don’t do that, you proceed to

question 2. If you answer that ‘no’, the case is at an end. It’s only if you answer question two ‘yes’ that you come

to question 3, which is asking you to assess damages.” (Emphasis added)

From this passage it seems quite clear that in the newspaper’s view the application of the section was a critical limb of its overall

liability defence: as such, whilst the jury was obviously urged to proceed in a particular way, nonetheless what they were told was

that irrespective of whatever view it might take, the question had to be answered.

15. In his closing argument, Mr. Doyle SC on behalf of Mr. McDonagh started as follows, on this question:

“Then you will get to question 2. This is a subtle area because you are talking about reputation. Again, the judge

will direct you very carefully about what you’re allowed to take into account when you’re assessing someone’s

reputation. The evidence about reputation in this case was given I suppose by Mr. McDonagh himself but,

importantly, by Mr. Murray.”

16. Counsel then recounted Mr. Murray’s evidence as to the appellant’s reputation, relying in the main on the fact that as a publican

in Sligo in the 1980s and 1990s, with a connection to Mr. McDonagh through a local football team, Mr. Murray would surely have

known if he had any reputation as a drug dealer. This portion of the closing speech clearly related to Mr. McDonagh’s reputation more

generally, rather than to the technical operation of section 22 of the 1961 Act. Such is quite clear from the fact that counsel went

on to refer to the fact that Mr. McDonagh had himself been granted a licence to run a pub in Sligo, indicating that he must have been

viewed as a “fit and proper person” for such activity and that there was either no objection by the local gardaí, or that any objection

was overcome. Again, it was said that this reflected well on his reputation.

17. Mr. Doyle SC then concluded thus on question 2:

“So question 2 on the Issue Paper is really to deal with the situation where you decide, all right, they haven’t

established he’s a drug dealer, they haven’t established he’s a loan shark, they have established he’s a tax evader

and criminal. Or, they haven’t established he’s a drug dealer but they have established the other three.

As Mr. McCullough said, does he have a reputation for which you should award him damages? On the basis of what I

have just told you, ladies and gentlemen, when you carefully assess the evidence again, of course he has a

reputation: he was a traveller ducking and diving. But to suggest, as Mr. McCullough has in some way, that he has

no reputation because he has a reputation as a drug dealer is nonsense when you take into account the licence

and the evidence of Mr. Murray.

You will then, I am confident, get to the question of damages. …”

As can be seen, what was said by the appellant’s counsel was highly distant and quite remote from the potential impact of section 22

on his client’s position; instead he concentrated on making the general point that the appellant’s reputation in Sligo was not that of a

drug dealer. This approach is entirely understandable, as it almost certainly would not have been in Mr. McDonagh’s interest to dwell

on the section.

18. It is necessary to recount how the trial judge charged the jury on this point. He stated as follows:

“Then we go on to question 2 which superficially, as has already been pointed out to you, seems a little bit

complicated. But it’s really not.

‘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?’

Now this leads us on to the question of damages which I have to touch on again. Damages in this case are

intended, should you decide to award damages -- I emphasise that I am only embarking on the question of damages

because you must understand everything. You are not to assume, because I have discussed damages, that I am of

the view that you should award damages or that it is a necessary matter for you. I have to deal with it because it

might arise. And because I deal with it, you mustn’t think that I am suggesting it should arise.

Damages in this case will be compensatory. If you think that the plaintiff’s reputation has been materially injured

you will then move on to question number 3, which is the assessment of damages.”

That was the extent of what the learned trial judge said on this issue.

19. Although the defendant does not complain about the adequacy of the charge on this question and probably could not, given the

absence of any requisition, it is at best ‘marginal to the bone’. No mention was made of the fact that the primary focus of the section

is liability-related and that it does not, in the first instance, link into damages. Unfortunately, the bulk of the judge’s comments on

this matter seemed to touch upon the issue of damages simpliciter rather than explaining the meaning of the section and how it might

also operate on the liability side. Be that as it may, this is what the learned judge said, and no issue was taken with it.

20. In addition, it is important to set out the verdict as read out by the trial judge:

“Mr. Justice de Valera: Has the jury reached a verdict?

Forewoman: Yes, we have.

Mr. Justice de Valera: Have you written it down on the Issue Paper?

Forewoman: Yes, I have.

Mr. Justice de Valera: Can you hand it in to me please? (same handed to the Court) This is a unanimous verdict, is that correct?

Forewoman: Yes.

Mr. Justice de Valera: The answers to the questions are as follows:

‘Has the defendant proved:

(a) that the plaintiff was a drug dealer

Answer: No.

(b) that the plaintiff was a loan shark

Answer: No.

(c) that the plaintiff was a tax evader

Answer: Yes.

(d) that the plaintiff was a criminal

Answer: Yes.’

The answer to number 3 is:

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

€900,000 plus costs.’”

The learned judge then thanked the jury for their service and bid them farewell. Evidently at that point the jury as an entity was

discharged and the individual members dispersed. From that point onwards the jury’s status at trial level was at an end.

21. Finally, the following exchange is then recorded in the transcript:

“Mr. Justice de Valera: Well, gentlemen.

Mr. Doyle: In those circumstances, judge I would ask you to enter judgment for the sum of €900,000 and I would ask you for my

costs.

Mr. Mohan: For the record, was there an answer to question 2?

Mr. Justice de Valera: Not as such.

Mr. Mohan: It was blank on the … (INTERJECTION)

Mr. Justice de Valera: It says:

‘If the answer to 2 is no, proceed no further.’

What they have done is to proceed further. It didn’t require an answer and there isn’t

one.”

Decision on the Question No. 2 Issue

22. Section 22 of the 1961 Act and its successor, section 16(2) of the Defamation Act 2009, have been on the statute books now for

almost 60 years. It was enacted to replace, or at least enhance, the common law position which is set out above. Its importance,

where more than one defamatory meaning is left to the jury, is central to the defence of truth, and it also plays a secondary role on

the question of damages. Therefore, it is a provision well known to all libel practitioners and is one which a judge in charge of a

defamation action, whether before a jury or not, must be ever conscious of.

23. In my judgment in McDonagh (No. 1), I expressed agreement with the Court of Appeal on the view which Hogan J. took of this

issue and with that part of his judgment which is quoted at para. 3(vi), above. However, in light of what the majority of this Court

has decided on Question No. 2, it is necessary to deal further with this point.

24. As every lawyer will know, a case may be won or lost, or its outcome at least heavily influenced, by what questions are left to

the jury and what form of wording or phraseology they might take. Quite often, therefore, a great deal of debate, if not downright

controversy, may centre on such questions. It is doubtful if anyone would suggest that meaningless questions should be left or that

abstract questions, neither essential nor relevant to the jury’s verdict, should be asked. It must therefore be assumed that when

agreeing to leave a particular question the judge is satisfied as to its materiality and its necessity to that end. If this be correct, one

could hardly argue that any resulting question, so posed for jury consideration, does not have to be answered.

25. Another related feature which deserves comment is the undoubted fact that the submitting of questions to the jury is separate

and distinct from the judge’s charge. Such questions are not a written part of the charge; neither does the judge in his address seek

to impose additional questions, or withdraw those which have been left. To my knowledge it has never been and is not now the

situation that questions are left even where it is obvious that a direction on a particular topic is both sufficient and appropriate.

Where that is the case the judge and only the judge deals with it. Therefore, the role of the judge in his charge and that of the jury

in its deliberations on the questions asked are quite separate and quite distinct, one from the other.

26. If the failure to answer Question No. 2 was noticed prior to the jury’s discharge, I cannot imagine but that counsel would have

insisted on their reassembly for the purposes of further deliberation, so that an answer to the question could be inscribed on the issue

paper. I equally have no doubt but that the judge, either at the behest of counsel or on his own motion, would have adopted exactly

the same course if the situation had been correctly assessed. I do not accept that such would simply have reflected a ‘belt and

braces’ approach: in any action, particularly in a defamation case before a jury, all parties thereto are entitled to a position of

certainty on such an important question. In any event, that of course did not happen. It was, as I have stated, too late for any

corrective action involving the jury when the error was noticed.

27. The trial judge, evidently realising this predicament, with no possible outcome other than declaring a mistrial, suggested that by

assessing damages, Question No. 2 had inferentially been answered. Can we consider for a moment what this necessarily must have

involved? It is that the jury had deliberated on the question, as it was on the issue paper and as instructed to do so; had reached a

consensus as to its answer; but then made a conscious decision that there was no necessity to record that answer on the paper.

With the same consciousness it must also have felt that those with an interest would immediately, and with apparent ease, recognise

that such an answer would be inferred. Even leaving aside the difficulty which this has posed for judges, with the Court of Appeal and

two members of this Court taking one view, but the remaining members taking another, such a scenario of itself seems highly unlikely.

28. In response to this very type of submission, which was advanced on behalf of Mr. McDonagh, the Court of Appeal agreed that this

may have been the case. However, having pointed out that an answer to the question was, in its view, a mandatory requirement of

the jury’s lawful deliberation, it went on to say that in the absence of a recorded reply it was quite impossible to know whether or not

they had considered the matter. In effect, the Court was saying that the suggestion made by the plaintiff may or may not have been

correct, but there is no way of knowing. I respectfully agree.

29. This is not a situation where the only explanation is that it deliberately ignored the question or failed to understand or appreciate

it, although given the paucity of the judge’s charge on this point that possibility certainly could not be ruled out. There is at least one

further explanation which is entirely innocent, namely, that due to inadvertence it was overlooked. One simply cannot know. Such a

possibility is as likely as not and attracts some support from the amount of damages as assessed by the jury. It was, by any

standards, a very substantial award for a person whose character they ought to have recognised was badly tarnished in the manner

described. Whilst I fully accept that this is also speculation, its basis and foundation is at least as solid as the view that an answer

can be inferred.

30. In his judgment, O’Donnell J., in suggesting that by not answering the question the jury was being “scrupulous rather than

careless”, seems to give the impression that when commencing their deliberations they were instructed not to do so, or at least that

they were left with that idea or belief. That view, at least in part, is based on the structure or format of the issue paper; in

particular, unlike Question No. 1, the word “answer” does not appear at the end of Question No.2. Rather, what is stated is that “[i]f

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

31. With great respect, I wish to offer a number of observations on this view. First, the issue paper, insofar as relevant to this point,

is headed “Questions”: there simply could be no doubt but that what follows are purely that. In addition, a question mark appears

after Question 2. Questions require answers – it is the jury’s sole function to provide them. Secondly, the direction at the end of

Question 2 is “if the answer to 2 is no, proceed no further” with Question 3 reading “if the answer to 2 is yes, assess damages”.

Whatever these sentences may be described as, both require an answer to Question 2: this is pivotal, not simply in a downstream

direction but also in an upstream context. Section 22 is positioned at the junction of liability and damages. If the answer to that

question is ‘no’, the newspaper wins on liability; if the answer is ‘yes’, the plaintiff is entitled to damages but only for a blemished

reputation. I therefore do not believe that the separation of Questions 2 and 3 is in any way artificial: in fact it is essential when one

recalls that section 22 is a complete defence on the issue of libel or no libel. Thirdly, and in any event, it must be answered and I

respectfully cannot yield to the format of the paper having any particular significance in this Court’s assessment of whether there was

or was not an answer to the question. Fourthly, it is said that answering Question 3 strongly suggests that the jury answered

Question 2 and did not answer it ‘no’. Whilst the latter is undoubtedly true, the former is a non sequitur. Finally, I see no distinction of

substance between the requirement for the jury to “answer” a question, and a question in the form of a direction to assess damages.

By so doing, they clearly answer that direction. I therefore cannot accept any of this reasoning for the conclusion so reached by the

learned judge.

32. Given the importance of the section, I am satisfied that the only correct way to proceed is that in the absence of a definitive and

expressed answer in the issue paper, it must be concluded that the question was not answered.

This Court’s Jurisdiction to Hear the Section 22 Issue

33. The above discussion on section 22 of the 1961 Act could not of course take place if this Court could not reconsider its previous

decision to refuse the appellant leave to further appeal on that question. Whilst O’Donnell J has dealt with this issue in his judgment,

and whilst I have proceeded as if this Court had such jurisdiction, nevertheless I expressly reserve my view on this type of issue for

another case, where the attendant difficulties in the instant appeal are not present. It must be remembered that this is not a

situation where the order granting leave reserved the right to re-open the issue, or that such possibility was canvassed at a

directions hearing. Furthermore, the substantive hearing was over before the matter was raised again. The situation is therefore quite

complicated.

34. In addition, the appellant did not, as such, engage in this debate, suggesting only that Order 58 Rule 29(1) of the Rules of the

Superior Courts provided a sustainable basis upon which to proceed. That clearly is not the case, and neither does Order 58 Rule 3

RSC have any relevance. Instead there are statutory and constitutional issues involved, including the interplay between Article

34.5.3° and Article 34.5.6° and how both provisions should be looked at in light of, inter alia, section 44 of the Court of Appeal Act

2014, which inserted a new section 7 into the Courts (Supplemental Provisions) Act 1961. None of these matters were addressed by

the appellant, which is unfortunate as these important issues would surely benefit from specific submissions. Accordingly, for the

moment I defer offering any conclusive view on the matter.

Disproportionate Damages: Retrial or Court Substitution of Damages

35. In McDonagh (No. 1) I held, as followed from the views which I expressed as to the appropriate way to further proceed, that the

damages awarded to the appellant bore no relationship to the reputational harm suffered and accordingly must be set aside. I did so

by applying the appellate standard or test for intervention as set out or touched upon in several cases which remain good law today.

These cases, which include Quigley v. Creation Ltd. [1971] I.R. 269, Barrett v. Independent Newspapers [1986] I.R. 13 (“Barrett”),

de Rossa v. Independent Newspapers [1999] 4 I.R. 432 (“de Rossa”), O’Brien v. Mirror Group Newspapers Limited [2001] 1 I.R. 1

(“O’Brien”) and my judgment in Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214 (“Leech”), have all however

also emphasised the distinctive, unique and special role of the jury in our system of defamation trials. As is now clear from the other

judgments about to be delivered in this appeal, every member of the Court is in agreement on that point. The question then arises as

to how the appeal should be disposed of. Having set aside the jury’s verdict on quantum, there are only two possible options open:

either an order for a retrial before a newly constituted jury, or for this Court, of itself, to undertake the task of assessing damages.

36. At one level, given my conclusion on the section 22 issue and the consequent need for a retrial in any event, it could be said that

the question posed is self-obvious and self-answering: as Question No. 2 on the issue paper must be answered in the affirmative

before access to damages can be had, and as the same tribunal must hear the evidence on both (see para. 12, supra and para. 60,

infra), it necessarily follows that the question of damages must also be remitted. As a result, there is no need as such to further

address in this judgment the consequences of the damages award being disproportionate. However, as the majority of my colleagues

have determined to substitute their own view as to damages, instead of remitting the matter for a retrial, I will venture a little more

on the reasons why I believe that this case is entirely ill-suited to such a course. In fact, may I reaffirm my strongly held view,

expressed in Leech, that the most appropriate course in a defamation case where damages have been set aside is to remit for a

retrial before a freshly constituted jury. In this case, for the reasons already given, that would require a retrial on all issues.

37. As a starting point in this respect, it is appropriate to have regard in the first instance to the basic fact of the retention of juries

in High Court defamation cases at all. Despite various legislative interventions over the years abolishing the right to have civil actions,

including personal injuries actions, heard by a jury – such as through section 94 of the Courts of Justice Act 1924, section 6 of the

Courts Act 1971 and section 1 of the Courts Act 1988 – there has been no change in the position relative to jury trials in High Court

defamation cases. The retention of this mode of trial is reflective of the particular role which juries have as the arbiter of community

values in such trials. The sui generis nature of the action and the distinctiveness of the jury’s positioning therein cannot be

overestimated as factors of the highest significance in favour of a retrial. In light of these considerations, I am of the view that this

Court should not substitute its own view of damages in defamation actions save in some exceptional circumstances.

38. In expressing this view, however, I should make clear that I do not doubt this Court’s jurisdiction to so do. Section 96 of the

Courts of Justice Act 1924, as re-enacted in section 48 of the Courts (Supplemental Provisions) Act 1961 (“section 96 of the 1924

Act”), provides the statutory framework in this regard. The relevant part of that section reads:

“In any appeal to which this section applies the appellate tribunal may, in lieu of ordering a new trial, set aside the

verdict, findings, and judgment appealed against and enter judgment as the court considers proper.”

39. In Gahan v. Engineering Products [1971] I.R. 30, a personal injuries case, Ó Dálaigh C.J. appeared to expressly found this power

of intervention on the provisions of section 96 of the 1924 Act. However, in Holohan v. Donohoe & Anor [1986] I.R. 45, another

personal injuries case, there was much discussion in the three judgments delivered (Finlay C.J., Henchy and McCarthy JJ.) regarding

whether the power to substitute damages was statutorily based or whether in fact it derived from the constitution (see Henchy J. at

p. 57). McCarthy J., dissenting, took the position that the Court did not have the power to substitute its own view of damages for

pain and suffering at all. The debate regarding the basis for such power need not detain us. I refer to the case simply to make the

point that in the thirty years since it was decided, the Court has reassessed damages in personal injuries cases on multiple occasions.

40. However, until very recently, the practice in defamation cases has been strikingly different, notwithstanding section 96 of the

1924 Act. As observed by Keane C.J. in O’Brien:

“In this jurisdiction, of course, the court has for some time now been prepared in actions for damages for personal

injuries to substitute for the sum awarded by the High Court such sum as the court thinks appropriate. That power,

however, has never been exercised by the court in cases of defamation.” (p. 18 of the report)

41. Indeed the law reports fully bear out this observation. A retrial was ordered in Barrett, though this of course is explicable by the

fact that the majority found that the trial judge was in error in directing the jury that the words complained of were defamatory.

However, Finlay C.J. and McCarthy J., who would have allowed the appeal on the issue of damages only, would have directed a retrial

confined to that issue; there was no mention of the possibility of a substitution of damages by the Court. The majority dismissed the

appeal in de Rossa, though Denham J. was of the view that the award “was excessive and on the principles of reasonableness and

proportionality I would reduce it to £150,000.” In O’Brien, Keane C.J. seems to have ordered a retrial on damages almost as a matter

of course, with Denham J. on that occasion reserving for another case “the matter as to whether it would be open to this court to

substitute an award of damages.” Similarly, in AE Dawson v Irish Brokers Association (Unreported, Supreme Court, 27th February,

1997, per O’Flaherty J.), a retrial confined to the damages issue was ordered seemingly without discussion. Although the Court

substituted its own view of exemplary damages in Crofter Properties Ltd. v. Genport Ltd. (No. 2) [2005] 4 I.R. 28, this is readily

distinguishable, first, on the basis that the original award had been made by a judge sitting alone and, second, given the nature of

the damages in question. Thus other than Leech, I know of no occasion where the Court has substituted its own view of damages in

lieu of a jury award in a defamation case.

42. This raises the question of why a distinction has been created between defamation actions and personal injury actions. There is,

in the first instance, an important difference between both causes of action in this respect. The courts have, for the most part, come

up with a reasonable idea of what a broken leg is worth, the value of a lost arm, and so on. There is a market which bears this out.

Such is not solely dependent on court judgments or related to the Book of Quantum, but in substantial part reflects the notorious

practice, which has been commonplace now for decades or more, of settlements being reached between indemnifiers and plaintiffs,

thus creating information which can readily be obtained within this market. There is also reasonable similarity between like cases.

Accepting, of course, that a person’s age, profession, trade or calling and one’s physical and other characteristics will have a bearing

(as they will on special damages, e.g. injury to a footballer’s leg, a pianist’s fingers, or the like), nevertheless, in general one will not

have to search too far to find a reasonable comparator in respect of most personal injuries claims. Adjustments or variations may be

required but in most instances such can be achieved. The comments of Geoghegan J. at p. 42 of O’Brien are very much to the same

effect. By contrast, by virtue of both the relative infrequency of defamation cases and the extent to which they necessarily turn on

their own facts, the same cannot be said of defamation.

43. In addition, defamation actions feature a much more nebulous injury than that as found in personal injuries cases: one must be

compensated for damage to reputation, injured feelings, hurt, distress, humiliation, a violation of privacy and dignity, as well as any

other consequence of the harm thereby inflicted. In that context I refer to what I said in Leech regarding the difficulties which may

face an appellate court in substituting its own view of damages. These problems are particularly acute in defamation cases. As stated

in that judgment:

“How can a transcript convey the depth of a person’s feelings who has been publicly humiliated; whose sense of

esteem and personal worth have been undermined, even shredded in some cases; whose presence even amongst

strangers may result in being shunned or rebuffed? How can a cold print give a sense of that person’s hurt, perhaps

touching the essence of who she is, of her character and personality, without which her sense of value could well

be shattered? I very much doubt that without observing, assessing or listening to the essential witnesses, in

particular the successful plaintiff, and without seeing her perform in the witness box, the members of an appellate

court, deprived of such a facility, can truly feel the gravity of the injury, of the harm and of the damage for which

that plaintiff is fully entitled to compensation. Such is a major handicap of significant proportions.” (para. 102 of the

report).

44. There is a further point of considerable substance, which is the underlying basis upon which damages are assessed in such

actions, as distinct from that which drives awards in personal injuries cases. The genesis for this difference is dealt with at some

length at paras. 35-41 of my judgment in Leech and accordingly I will not further repeat what was said there. However, there is one

aspect of this which should be mentioned: it is reflected in the following short passage from the judgment of Windeyer J. in Uren v.

John Fairfax & Sons Pty. Ltd. (1966) 117 C.L.R. 118, 150:

“For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public

and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense

for harm measurable in money.” (Emphasis added)

This element of damages, which is policy motivated, is based on the courts’ view that the defamed must be able to demonstrate to

the world at large, by reference to the award, that the publication was utterly spurious. See also Broome v. Cassell & Co. Ltd [1972]

A.C. 1027 at 1071, where Lord Hailsham L.C. said very much the same thing.

45. In McDonagh (No. 1), reference is made to the sanctity of the jury’s role in defamation cases (paras. 89-98). This sanctity

attaches to all aspects of its involvement, including the determination of what damages a particular plaintiff should get in a particular

case in light of the defamatory remarks in question. In a personal injuries action, which of course at trial level is heard solely by a

judge, interference at appellate level is in essence simply a reversion to the norm: the damages are reassessed such that they fall

within the bracket typically commensurate with the injury, taking other relevant factors into account. In a defamation case, however,

appellate substitution of the award is a usurpation of the jury’s role. There can of course be cases of truly perverse awards, but for

the most part the jury’s verdict is at the very least some indication of the community’s view of the injury inflicted to the defamed’s

reputation. As there will seldom if ever be an apposite comparator in respect of such an award, a substitution of damages will

therefore require more than what will typically be necessary in a personal injuries action; in the latter the award can simply be varied

such that it falls within the expected scope of damages for the injury at issue. There is no such general range in relation to

defamation, and so the court is forced to take upon itself the mantle of deciding de novo what the damage to reputation is worth.

This is an inherently different and a much more intricate exercise than a personal injury reassessment, where the expected upper and

lower ends of the spectrum are likely to be much more clear-cut. Thus where a defamation award is substituted by the court on

appeal, the judges essentially substitute their own view of how much the damage to the defamed’s reputation is worth, rather than a

jury making that assessment. As noted by Lord Hobhouse at para. 50 in Grobbelaar v News Group Newspapers Ltd [2002] U.K.H.L. 40,

[2002] 1 W.L.R. 3024:

“For the purposes of the law of defamation, what is relevant is the effect of the publication upon the perceptions of

the ordinary reader of the ‘Sun’ newspaper, not upon those of a judge of the Court of Appeal, and how it would

alter such a reader’s view of the plaintiff.”

Whilst this was said in the context of an assessment of where the ‘sting’ of the articles in question lay, I believe that such rings no

less true when it comes to damages. The award of damages should compensate the plaintiff in light of the injury done to his

reputation in eyes of the public, rather than in the view of superior court judges.

46. It appears from their judgments that the primary motivation of the majority of the Court for substituting damages in the instant

appeal, rather than having the issue tried by another jury, is essentially the long-running nature of this litigation. Undoubtedly 17

years is a long time under any circumstances and I would be as anxious as any other to bring this matter to an end as quickly as

possible: however, it would ill serve all to do so where the exigencies of the circumstances simply do not facilitate such a course.

Consequently, despite the obvious attraction of closure, I cannot agree that this alone is sufficiently compelling for the Court to

adopt the approach which it has. No submission has been made, apart from one related to the lapse of time, which may have

constitutional or conventional implications for a retrial. The normal reasons for terminating a long-running case, such as decisive

memory loss, a missing witness, loss of vital documentation etc., are not present in the instant appeal. Moreover, in light of the other

remaining issues – the jury’s lack of answer to Question 2 being the primary consideration – I conclude that the most apt way to

proceed would be a retrial in front of a fresh jury.

47. Furthermore, I would be very concerned to see this type of appellate reassessment become commonplace. Section 13 of the

Defamation Act 2009 expressly provides that this Court, on hearing an appeal, may “substitute for any amount of damages awarded

to the plaintiff by the High Court such amount as it considers appropriate.” This applies equally to judgments entered pursuant to the

verdict of a jury (section 13(2)). That section self-evidently has no application to the instant case (section 3(1) of the 2009 Act).

48. Leech and the present case have in common that the majority have found it proper to substitute their own view on damages.

They also have in common the particularly protracted and long-running nature of the litigation in question. Section 13 of the 2009 Act

is not restricted in its operation to such circumstances, and evidently has been enacted as an express measure by which

disproportionate awards may be reviewed. A sustainable award must of course be fair to both parties and be arrived at in accordance

with well-established precedent. Quite evidently appellate intervention will be required from time to time so as to ensure that the

appropriate balance is struck. However, and notwithstanding the section, which in substance may not have added much, if anything,

to section 96 of the 1924 Act, I would have grave reservations about the Court itself reassessing damages in anything but the most

compelling of circumstances. On this point I agree with the many observations of Dunne J. in her judgment in this case, where she

has emphasised that only in exceptional circumstances should the Court so act. We differ only in respect of our conclusions on

whether this case presents such circumstances. Whilst the longevity of the litigation is a factor, it is but one to be considered; this

along with a host of others which may arise in any given case. Therefore each such factor must be considered and no single one can

determine the outcome.

49. In this case, one could not but be struck by the disparity between the quantum of the jury award and the figure arrived at by the

majority. They differed substantially. As alluded to above, this is not simply an adjustment but is a complete substitution of a fresh

award. I readily accept that the whole point of appellate interference in the first instance is that the original award was

disproportionate. A relatively modest adjustment was made in the Leech case, where the original figure was reduced ultimately to just

over two thirds of the jury’s award. I would have reduced it to slightly over half of what was awarded. Even if disproportionate in

amount, the sum awarded by the jury in the first instance is inherently reflective of its view of the injury to reputation suffered by

the defamed. To largely stand aside that sum, and to arrive at a figure which bears little relation to it, is to effectively jettison the

jury’s view. In effect, the jury’s role has been disregarded and instead the Court has assessed damages de novo. In lieu of the view

of twelve members of the community as to damages, even as a starting point from which to make adjustments, the Court has entirely

assumed that role and come to a conclusion, which must be taken to reflect the damage to the applicant’s reputation, entirely

distinct from that reached by the jury. While I do not doubt its general jurisdiction to reassess, nonetheless the sum suggested offers

powerful support for the proposition that the more appropriate course is to remit the matter for further jury consideration. The

reasons in principle for this, centred on the sanctity of the role of the jury in defamation actions, are articulated throughout my

judgment in McDonagh (No. 1) and this judgment.

50. It is hard to believe that a routine redetermination of damages by this Court would result otherwise than in the reduction of the

value of awards in the vast majority of such cases. If this case is any barometer, such reduction may be very significant. I would be

most reluctant to countenance a situation whereby a successful appeal as to the size of the award would likely have the effect of

the Supreme Court substituting in its place an award of an altogether smaller order. Such would very quickly deprive the law of

defamation of its teeth. Awards must of course be fair to both parties but I would not overlook the potentially positive dissuasive

effects of larger awards. Such are likely to ensure that the publisher makes sure to verify the truth and veracity of the content,

thoroughly checks the sources, and generally takes every available precaution prior to publication. The retention of juries in

defamation cases and their concomitant power to assess the award of damages is itself part of the appropriate balance that has been

struck in this jurisdiction between the freedom of expression and the right to one’s good name. What protective value is there left in

the law of defamation if awards are routinely liable to be reduced, particularly in such a way that the predicted level of compensation

is unlikely to outweigh the expected circulation figure resulting from the inclusion of the untruthful information? If that were generally

to occur, the risk would simply be assessed by way of a cost-benefit analysis.

51. In making these observations, it might be thought that I am suggesting there should as a matter of course be some punitive

aspect to damages: this is not really the point which I intend to make. What the law is trying to do is to compensate for harm and

injury to good name, not to police the newspaper industry. If, however, the start point even for an untarnished reputation should be

pitched at a level of little or no concern to the industry, then the inherent respect for one’s good name which the constitution

demands could be seriously diminished as a matter of routine, certainly if the defamed has any antecedent reputational harm. In such

circumstances there would be no point in suggesting that the industry might be sanctioned for its unethical behaviour: in any event

that is not what the law of defamation aims to do. Consequently, at the level of principle, damages play a key role in the balance

between good name and free expression.

52. In addition, could I repeat the views which I expressed in Leech regarding any cross-reference to or reliance on awards in

personal injuries cases (paras. 32-45 and 73-75 of the report) or defamation actions (paras. 46-49 and 76-84 of the report) as

comparators for what a jury should award in any given case. Likewise with what I described as “auction advocacy” (paras. 29-31 of

the report).

Independent Newspapers (Ireland) Limited v. Ireland

53. In light of the recency of the judgment of the European Court of Human Rights in Independent Newspapers (Ireland) Limited v.

Ireland (Application no. 28199/15, judgment of the 15th June, 2017), arising out of this Court’s judgment in Leech, it is perhaps worth

addressing briefly that Court’s conclusions. In so doing the intention is not to offer criticism in respect of that judgment but simply to

contribute to the positive judicial dialogue referred to by O’Donnell J in his judgment in this case (para. 36).

54. The European Court, as part of its conclusion that there was a breach of Article 10 ECHR on the facts of the case, found that

there had been a defect in reasoning at appellate level. If one were to highlight the main factor leading to such conclusion, it was

that “further clarification was lacking regarding why, in particular, the highest ever award was required in a case which the Supreme

Court did not categorise as one of the gravest and most serious libels.” This apparent incongruity stands at the heart of the violation.

55. With the greatest of respect to the ECtHR, I believe that this conclusion perhaps does a disservice to the comprehensive

judgment of Dunne J. for the majority in Leech. It is true that the learned judge found that the gravity of the libel at issue in that

case was not as serious as that in de Rossa (see paras. 139 and 155 of the report). That, however, is but one of the factors which

an appellate court will take into account when considering the proportionality of an award. Dunne J. went on to consider the extent

of the publication (para. 140), the conduct of the defendant (paras. 141-146) and the impact of the defamation on the plaintiff

(para. 147-151). As acknowledged by the ECtHR (§ 98), these same factors self-evidently fed into the ultimate determination of the

award. It is unnecessary to retread the analysis in Leech; it should suffice to say that merely because the defamatory statement

itself is not the worst such example which has ever been before the courts, it does not follow as a matter of course that the plaintiff

is not entitled to the highest ever award of damages. That is but one factor, and I do not believe that it requires an over-generous

reading of Leech to see that it was based on the other factors that such a large award was made. As is evident from the judgment of

Dunne J. in Leech, and as highlighted by O’Donnell J in this case, the damage done to Ms. Leech’s business and professional

reputation was a particularly distinguishing feature of that case.

56. It is, moreover, worth noting that the violations found by the ECtHR were grounded firmly within the presenting circumstances of

the Leech case, relating as they did to the lack of “concrete indications” in the trial judge’s charge (§ 92) and the absence of “further

clarification” of the reasons for the Supreme Court’s ultimate award of damages (§ 100). However, that Court did not raise any

objection to the general system of trying defamation actions as exists in this country, nor was it critical of the retention of the

retention of juries and their role in the process. As the Court pointed out:

“105. The Court would stress that it is mindful of the respondent State’s attachment to the institution of the jury in

defamation cases. In the Supreme Court McKechnie J. commented on the uniqueness of the jury’s representative

function in this type of case, embodying the values of the community. For its part the Court considers that it is

entirely legitimate to involve citizens in different aspects of the administration of justice … What is at issue in the

present case is not the respondent State’s choice of a system of trial judge and jury, a choice that was recently

reaffirmed in the 2009 Act that came about following careful reflection and debate at domestic level. Nor is it the

task of the Court, as highlighted previously, to take the place of the national court. Rather, the issues are the

nature and extent of the directions to be given to the jury by the trial judge to guide it in its assessment of

damages and protect against disproportionate awards and, in the event that the appellate court engages in a fresh

assessment, relevant and sufficient reasons for the substituted award.”

57. It has been observed by counsel since the delivery of that judgment on the 15th June, 2017, that the judge’s charge in this case

was substantially the same as that in the Leech case, which was found by the ECtHR to be inadequate. However, as no point of

appeal in relation to the charge had been pressed before that time, and as the parties in any event decided to settle the matter at

the eleventh hour, there is no need to say anything further on that matter. At any rate, I highlight this point simply to stress that

what the European Court was concerned with was whether the trial and appellate safeguards operated effectively in the Leech case

itself, and not with an assessment of the efficacy of those safeguards in a more general sense. Therefore, as can be seen, the

violation could not be classified as one of substance but rather one which was purely procedural.

58. However, lest it should be thought that this is merely the reaction of an appellate judge bristling at Strasbourg oversight, I should

hasten to add that this Court has of course taken note of the fact that the European Court found a violation of Article 10 at

appellate level, and such is a consideration for future decisions.

Final Order

59. In light of my conclusions on the section 22 issue, and also due to the disproportionate damages award, I am satisfied that a

retrial, rather than a substitution of damages by this Court, is required. This course is not without perils of its own. Undoubtedly this

is a long-running case but the witnesses remain available: no prejudice has been identified or relied upon to suggest that a retrial

would not be fair.

60. It is also true, as counsel on behalf of Mr. McDonagh pointed out, that to order a full retrial would deprive the appellant of the

findings in his favour on the drug dealing and loan sharking allegations as made by the original jury. Such, certainly at first blush, is a

compelling argument against a full retrial. Although some suggestion was made that it may be possible to limit a retrial to the section

22 issue, or to that issue and damages, such a course could not realistically be countenanced by the Court. The determination of the

section 22 point – and indeed damages also – necessarily requires a jury to hear all of the evidence. It would be altogether implausible

to expect a freshly constituted jury to hear the entirety of the evidence whilst being bound by the findings, perhaps unsupportable in

its eyes, of a previous jury on the critical issue of justification. Thus it is clear that a retrial would have to be on all the issues. As

pointed out by Mr. McCullough SC on behalf of the newspaper, however, the apparent unfairness to the plaintiff of such a move is

simply a litigation consequence of my decision: it is not at all uncommon that a full retrial will follow even where an appellant is

successful on a single point only.

61. The approach which I have adopted reflects the newspaper’s curious but steadfast view that a retrial should be ordered. This

may seem anomalous in light of the well-known lobbying and complaints by the media, articulated in many forums, including before the

European Court of Human Rights, that appellate substitution of damages is the preferable outcome. Nevertheless, as a matter of law,

and whatever the reasons therefor might be, I take the view that the respondent is correct in its submission on this occasion.

62. As mentioned in paragraph 1 of this judgment, the parties settled their dispute minutes before this Court was due to deliver

judgment, and accordingly there will be no further proceedings between the parties. However, for the integrity of this judgment, it is

important that the concluding paragraph as originally drafted should be included. It read as follows:

“Therefore, despite the full acknowledgement that neither route is wholly satisfactory, I believe that the better

course is to order a full retrial. This conclusion follows inexorably from my view on the section 22 point, and also

independently on the damages issue. While I agree with the majority of this Court that the original damages award

is disproportionate, in the circumstances I will express no view on what would have been an appropriate award. I

would order a full retrial.”