Court of Appeal dismisses appeal against jury verdict finding sexual assault and awarding damages.

THE COURT OF APPEAL

CIVIL

Approved

No Redaction Needed

Neutral Citation: [2025] IECA 162

Record Number: 2025/32

High Court Record Number: 2021/298P

Kennedy J. O’Moore J. MacGrath J.

BETWEEN/

NIKITA NÍ LAIMHÍN

PLAINTIFF/RESPONDENT

-AND-

CONOR MCGREGOR

FIRST NAMED DEFENDANT/

APPELLANT

-AND-

JAMES LAWRENCE

SECOND NAMED DEFENDANT

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 31st day of July, 2025.

1. On Sunday the 9th December 2018 four people made their way to a penthouse suite in the Beacon Hotel, Sandyford, County Dublin.1 What happened that day was the subject of fierce dispute at the trial of this action, which took place before Owens J. and a jury over a period of 12 days in November 2024. Ms. Hand alleges that Mr. McGregor raped her. Mr. McGregor said that there had been “fully consensual … enthusiastic and … athletic” sexual intercourse. The jury therefore had to decide, in essence, between Mr. McGregor’s description of a rather tawdry episode and Ms. Hand’s claim that a criminal offence had been committed against her.

2. On the 22nd day of November 2024, the jury retired to consider the following issues:

-

“(1) Did Conor McGregor assault Nikita Ní Laimhín?

(2) Did James Lawrence assault Nikita Ní Laimhín? If the answers to both question (1) and question (2) are “no” proceed no further. If the answer to question (1) is “yes”, assess damages payable by Conor McGregor under the following heads… If the answer to question (2) is “yes”, assess damages payable by James Lawrence under the following heads…”

3. To issue (1), the jury replied “yes”. It then assessed damages in the amount of €248,603.60. This was made up of €60,000 in general damages and €188,603.60 in special damages. Neither exemplary nor aggravated damages were awarded, though they had been sought.

While the room was described as a penthouse suite by a number of witnesses, Mr. McGregor was careful to specify that “… it is charged as a penthouse but in reality it is just two regular hotel rooms with a door that is in the centre that is open”: Day 6, p. 134.

4. Mr. McGregor has appealed this verdict against him. The balance of this judgment will be structured by reference to the grounds of appeal, though not necessarily in the order in which they appear in the notice of appeal. Ground of appeal E in the notice of appeal relates to the “new evidence” which Mr. McGregor wished to adduce. This ground of appeal was abruptly abandoned, without any prior notice to the court, when the court sat on the 1 st July 2025 to commence the hearing of the appeal. Notwithstanding the fact that this ground of appeal is no longer being pursued by Mr. McGregor, there is an outstanding issue (of costs) pertaining to it. I will therefore begin the substantive part of this judgment by considering the application made (on the second day of the appeal) by counsel for Ms. Hand, to the effect that she should have the costs incurred by her in respect of the two “new evidence” motions awarded to her on a legal practitioner and own client basis regardless of the outcome of the balance of the appeal. I will then consider, in the sequence in which they are advanced on the notice of appeal, the further four grounds of appeal upon which Mr. McGregor relies.

5. The balance of his judgment will, therefore, be in the following order: -

(1) “The new evidence” – paragraphs 7 to 60;

(2) The trial judge’s decision to ask the jury to decide whether or not Ms. Hand had been “assaulted” as opposed to “sexually assaulted” – paragraphs 61 to 100;

(3) The “no comment” evidence – paragraphs 101 to 153;

(4) The ability of Mr. McGregor’s counsel to carry out an effective crossexamination – paragraphs 154 to 167;

(5) A selection of alleged failures in the trial judge’s charge to the jury – paragraphs

168 to 179.

6. I should say that a sixth ground of appeal, which appears to be a catch-all ground, is to be found at (F) of the notice of appeal as follows: - “In all the circumstances the decision that the Tribunal of fact reached was one that no reasonable Tribunal, properly directed, on the evidence and the law, could have reached.”

Notwithstanding the provision of written submissions running to 22 pages, and having a full opportunity to make oral submissions on this ground of appeal at the hearing of the appeal, no argument has been advanced on behalf of Mr. McGregor relating to this ground. I will therefore treat it as having been abandoned.

The “new evidence”

7. The notice of appeal, dated the 10th March 2025, asserts that the verdict of the jury was unsafe given the “new evidence” which had “come to light” since the trial concluded. While the notice of appeal states that this new evidence “includes” the evidence of Ms. Samantha O’Reilly and Mr. Stephen Cummins, and later refers to an application to be made on behalf of Mr. McGregor seeking leave to adduce new evidence “grounded, inter alia, on affidavits sworn by the said witnesses Samantha O’Reilly and Stephen Cummins …”, no other witnesses are in fact named in the notice. The only other affidavit sworn in respect of the “new evidence” of Ms. O’Reilly and Mr. Cummins was (understandably) an affidavit sworn by Michael Staines, the solicitor for Mr. McGregor, the relevant contents of which I will later describe. There is no reference whatsoever in the notice of appeal to “new evidence” from any other witnesses. It is stated, at Ground E(d), that the evidence of Ms. O’Reilly and Mr. Cummins provides: - “a plausible explanation for the bruising that was not available to the jury during the trial…”

8. The relevant “bruising” is bruising to Ms. Hand’s body which, it was asserted at the trial, had been inflicted during the course of her rape by Mr. McGregor and which constituted evidence of that alleged sexual assault.

9. Importantly, it is nowhere asserted in the notice of appeal that the “new evidence” of either Ms. O’Reilly or Mr. Cummins is in any way dependent upon the admission of other evidence to support the testimony of these two new witnesses.

10. Some weeks later, by motion dated the 4th April 2025, Mr. McGregor’s lawyers sought an order in the following terms: - “An order pursuant to O. 86A, r. 4 of the Rules of the Superior Courts and/or pursuant to the discretion of this Honourable Court, permitting the appellant to adduce new evidence in this appeal which evidence is the evidence of Samantha O’Reilly and the evidence of Stephen Cummins as to what they witnessed on Monday, 10 December 2018 between the plaintiff/respondent and her then partner, Ste (sic) Redmond, which is set out in their affidavit sworn on 14th January 2025.”

11. At the risk of stating the obvious (given the date of the affidavits of Ms. O’Reilly and Mr. Cummins), by the time this motion was issued these affidavits have been available to Mr. McGregor’s solicitors for almost three months. The jurat shows that it was Mr. Staines who had identified each deponent to the relevant Commissioner for Oaths. He was therefore at the least aware of the contents of these affidavits from the day they were sworn.

12. The application was grounded upon the affidavit of Mr. Staines. At paragraph 3 he says: - “I make this Affidavit for the purpose of grounding an application by the Appellant to adduce new evidence to this appeal, namely, the evidence of Samantha O’Reilly and Stephen Cummins relating to events in the early hours of on (sic) Monday, 10 December 2018. And upon receipt, a report from Professor Jack Crane.”

13. The reference to Professor Crane is strange. Nowhere in the notice of motion itself is any leave sought to adduce the evidence of Professor Crane. At this point in the affidavit, there is no description of what Professor Crane’s evidence will address. Most importantly, there is no suggestion that the evidence of Ms. O’Reilly and Mr. Cummins is in any way dependent on Professor Crane’s report either coming to certain conclusions or being admitted.

14. The only other reference to Professor Crane is a rather more illuminating one at para.

19 of Mr. Staines’ affidavit. It reads: -

“In light of these developments, I have engaged a leading expert, Professor Jack Crane, to review the nature of the injuries that have been sustained and to determine when those injuries had been sustained. Professor Crane has commenced his work but will require approximately eight weeks to produce a report.”

15. While I have described this as “more illuminating” than the reference at para. 3 of Mr. Staines’ affidavit, this is in fact a low bar. Paragraph 19 of the affidavit gives no information about when Professor Crane was engaged, when he commenced his work, and (most significantly) whether or not Professor Crane had given any indication of a preliminary nature as to what his conclusions would be. Again, there is no suggestion that Professor Crane’s evidence is critical to the application to admit the evidence of either Ms. O’Reilly or Mr. Cummins. It is to that evidence that I now turn.

16. Ms. O’Reilly’s affidavit is brief. It states that she “started living in 185 Errigal Road, Drimnagh, Dublin 12 in November 2018.” She says that she lived there with her partner Stephen and with two children. She describes her house, which she says “faces directly across the road from the house owned by Stephen Redmond and Nikita Hand.”

17. Ms. O’Reilly then gives an admirably clear account of what happened on the weekend of Sunday the 9th December 2019. Other people might be challenged, over six years after the event, to remember what happened on a particular date. However, Ms. O’Reilly’s account is (at least on the face of it) supported by the following precise details: -

(a) Ms. O’Reilly’s daughter (whom she names) was stated to be a good friend of Ms. Hand’s daughter;

(b) Ms. Hand’s daughter was in Ms. O’Reilly’s house on that Sunday afternoon the 9th December;

(c) Ms. O’Reilly states that she remembers that Ms. Hand’s daughter said to her “that her mother had been at her office party that she was worried that her mother had not come home”;

(d) Ms. O’Reilly remembers telling Ms. Hand’s daughter “not to worry and that she would be home soon.”

18. This is a very precise and relatively detailed description of a specific event which, at least according to Ms. O’Reilly’s affidavit, appears to allow Ms. O’Reilly to anchor her recollection of what subsequently happened. That is set out at para. 4 of Ms. O’Reilly’s affidavit: - “Later that night I went to bed. I was woken from sleep by the sound of screaming and shouting. I looked out my bedroom window. There were no blinds or curtains on my bedroom window. The sounds of shouting and screaming came from the house across the road. I could see directly into a bedroom window in Ste (sic) and Nikita’s house. They have wooden venetian blinds but they were open and the light was on. They were both shouting at each other. Nikita was saying words to Ste to the effect that it is always about you. They were running in and out of the bedroom. Nikita was pushing Ste. Eventually they came into the first bedroom again. Nikita was now first into the room and Ste followed her in and then I saw Ste push her and Nikita fell to the floor. I could see Ste’s arms moving up and down as if he was hitting Nikita. I also saw him moving his hips in a way that indicated to me that he was kicking her. As Nikita was on the ground I did not actually see any blows land on her. She got up and started pushing her hair out of her face. Her hair covered all of her face. She then ran out of the room and Ste followed. I was extremely upset at this. At this stage both my daughter and my partner Stephen were also awakened up. My daughter was screaming at me to go and help Freya’s mam. I told Stephen that we should go over and intervene. He insisted that we should not get involved in other persons’ domestic row. We had an argument about this.”

19. Ms. O’Reilly then gives very clear evidence about hearing the sound of a car skidding and leaving the cul-de-sac, which she describes as Stephen’s jeep. Ms. O’Reilly then says:

-

“I was very concerned for Nikita so I went across the road. She had come out from her front door and she was screaming. I went downstairs and when I got out she was walking away me (sic) back to her house. She seemed in terrible pain and was walking like an old woman. I asked her was she ok. I think that she was embarrassed and she ignored me and she went back into the house and just slammed the door on

(sic) my face. She did say ‘I am grand’ and continued on. I noticed that her eyes seemed to be popping and she seemed angry.”

20. Finally, Ms. O’Reilly says that some days later Ms. Hand told her that Ste did not believe her, that she had been assaulted on her way home from the office party, and that Ms. Hand never mentioned Mr. McGregor.

21. Ms. O’Reilly then gives an account as to why it was that it was that she only came forward with this evidence (via Mr. McGregor’s sister) after the trial had concluded.

22. The affidavit of Mr. Cummins is even briefer. This is because, while he says that he heard screaming and shouting which indicated that there was a row going on in Ms. Hand’s house, he did not want to get involved and “was not even prepared to look over at what was happening.” An important detail of Ms. O’Reilly’s proposed evidence (and, by extension, that of Mr. Cummins) is that the view she had of the events she described was from her bedroom window.

23. It will be seen immediately that these accounts are very comprehensive and clear. Neither witness, in either affidavit, suggests that they have any doubt about their evidence, nor do they say at any stage that they have difficulty with remembering the incident. As already noted, Ms. O’Reilly actually provides a reason (by reference to the two young girls playing together, the distress of Ms. Hand’s daughter and the comfort Ms. O’Reilly says she provided to her) as to why she remembers the date.

24. This is evidence which, if true, could have been of no little importance to Mr. McGregor either at the trial in the High Court or on appeal to this court.

25. Subsequent to the issuing of this motion, replying affidavits were sworn by Dave Coleman (Ms. Hand’s solicitor) and by Ms. Hand herself. Both affidavits were sworn on the 25th April 2025. Ms. Hand’s affidavit accepts that the two young girls were friendly, but importantly asserts that: - “I know that Samantha and Stephen’s bedroom was upstairs at the back of the house looking onto the back yard. The windows upstairs at the front were kid’s rooms.”

26. Ms. Hand went on to accuse Ms. O’Reilly and Mr. Cummins of “making up these lies.”

27. Ms. O’Reilly swore a further affidavit, relating to contact with Mr. McGregor’s sister’s and Mr. McGregor’s own Instagram accounts (both made on the 25th November 2024) which stated that Ms. O’Reilly had “information” that she wished to share with the McGregor side. Ms. O’Reilly expressly states that Ms. Hand’s account “is all lies.” Ms. O’Reilly says nothing about the configuration of her former house and in particular about whether or not her bedroom faced to the rear.

28. Of course, if it was the case that the bedroom occupied by Ms. O’Reilly and Mr. Cummins faced to the rear of the premises, that would deliver a body blow to the account that both Ms. O’Reilly and Mr. Cummins had given on affidavit. Nothing in any expert report or other form of evidence from a forensic pathologist such as Professor Jack Crane could have changed the orientation of the bedrooms in Ms. O’Reilly’s former home.

29. Before I come to the attempt to introduce Professor Crane’s evidence, however, I must complete the account of the procedural history relating to the application to adduce evidence from Ms. O’Reilly and Mr. Cummins. The motion having been issued, and the affidavits on both sides having been filed, the matter was dealt with by Noonan J. on the 2nd May 2025 in the following manner. Firstly, he directed that the motion be adjourned to the hearing of the appeal. The question of the fresh evidence was, therefore, to be decided by this court at the hearing due to commence on the 1st July. Secondly, liberty was granted to cross-examine any of the deponents who had given evidence on the motion on their affidavits. That meant that Mr. Coleman, Ms. Hand, Mr. Staines, Ms. O’Reilly, and Mr. Cummins could all be cross-examined as to the evidence that they had given. On a subsequent occasion (the 16th May 2025) Noonan J. permitted a further affidavit to be filed, that being an affidavit of Ms. Hand’s former partner, but also ordered that no further affidavits were to be filed on the motion to adduce fresh evidence.

30. It was therefore somewhat surprising that in early June 2025 Mr. McGregor’s solicitors wrote to the Registrar of this court attaching a “preliminary report of Mr. Jack Crane” with the following message: - “We wish to adduce this evidence in the appeal as it is relevant to the new evidence that is sought be admitted. We could be grateful is (sic) you could advise whether the court wishes to have the matter listed for the purpose of hearing any application in respect of this new evidence in advance of the appeal hearing, or whether the court prefers to leave the issue to be addressed at the hearing of the appeal itself.”

31. This court directed that any motion to admit further new evidence would be listed for hearing at 10:30am on the 18th June 2025. This was the first day of the new law term. The motion in respect of Professor Crane’s evidence, therefore, was issued on the 12th June 2025. This motion was grounded upon a further affidavit of Michael Staines. An affidavit of Conor Crean, a trainee solicitor in Mr. Staines’ firm, was also sworn for the purpose of exhibiting correspondence. An affidavit of Professor Crane dated the 9th June 2025 was provided, as was an affidavit of Jacqueline O’Mahony, a digital forensic consultant who had provided stills from CCTV footage to assist Professor Crane in preparing his report. Mr. Coleman, as solicitor for Ms. Hand, swore a replying affidavit on the 16th June.

32. The hearing of the 18th June 2025 was to assume some significance in the submissions made to this court on the 1st July 2025. In particular, at one point in time the attitude which it is alleged the court displayed at this hearing formed a reason for the withdrawal of the application to adduce the “new evidence” of Ms. O’Reilly and Mr. Cummins. It is therefore important to understand exactly what happened on that occasion.

33. Firstly, counsel for Mr. McGregor (Mr. Farell SC) maintained that the evidence of Professor Crane was essentially to support the evidence of Ms. O’Reilly and Mr. Cummins. Secondly, he conceded that an application to adduce new evidence in support of an earlier application to adduce different new evidence was a legal novelty. Counsel accepted that he had no legal authority in aid of such an application. Nonetheless, he asked the court to adjourn the motion with regard to the Crane evidence to the hearing of the appeal so that it could be advanced in the context of the evidence of Ms. O’Reilly and Mr. Cummins, the admission of which the report of Professor Crane was purported to support. This, ultimately, was the order that this court made. While counsel for Ms. Hand wanted the motion with regard to Professor Crane’s evidence to be struck out there and then, counsel conceded (when asked by this court) that he had no authority to support his argument that a motion of this type was impermissible. The application by Ms. Hand made on the 18th of June was, therefore, in effect refused by the court.

34. Throughout the hearing on the 18th June, the court was anxious to understand exactly what Professor Crane’s evidence was intended to achieve. The court was also very keen to give the parties an opportunity to research the matter and see whether there was any authority, either in Ireland or elsewhere, relevant to the application being made. For that reason, supplemental submissions were directed and ultimately delivered by the parties. The written legal submissions delivered on behalf of Ms. Hand were, again, to assume some importance in the context of the reasons given for the abandonment by Mr. McGregor of the entire “new evidence” aspect of this appeal.

35. The affidavit of Mr. Staines grounded the application to admit the evidence from Professor Crane and gave, as it should, further detail about that evidence. It sets out that Professor Crane was instructed on the 7th March 2023. It states that Professor Crane was only able to provide a “preliminary expert report” on the 27th of May 2025.

36. Nowhere in his affidavit does Mr. Staines say that the application to admit the evidence of Ms. O’Reilly or Mr. Cummins is in any way dependent or contingent upon the admission of Professor Crane’s report. Equally, at the hearing of the 18th June 2025 counsel for Mr. McGregor made no such submission. It is also worthwhile to consider what Professor Crane’s preliminary report says. His conclusion is that: - “This woman had sustained a number of injuries as a result of an assault. The injuries were of recent origin and could have been sustained on the afternoon of 9 December 2018 or the early hours of 10 December 2018. Most of the injuries were of a nonspecific nature and consistent with blows such as by punching or kicking. Discrete bruising to the upper arms could have been caused if the limb(s) had been forcibly grasped. A large area of bruising on the left buttock would be consistent with a forceful slap.

A review of images taken from the CCTV footage in the hotel carpark and lift would not appear to show any bruising to Ms. Hand’s right arm, right breast or left arm. As all the injuries would appear to be contemporaneous this raises the likelihood that the other injuries found during the medical examination at SATU were sustained some time later and not, as alleged, on the afternoon of 9th December in the hotel.”

37. On the face of it, therefore, there is some support provided by Professor Crane’s report to the account provided by Ms. O’Reilly and Mr. Cummins. It is, however, by no means definitive.

38. Before considering the application to withdraw the proposed evidence of Ms. O’Reilly and Mr. Cummins, I will describe the written submissions with regard to the admissibility of Professor Crane’s evidence. The McGregor side delivered a submission dated the 18th June 2025 referring to a range of authorities including O. 86A(4), People (DPP) v. O’Regan [2007] 3 IR 805, McDonagh v. Kennedy [2012] IESC 56, People (DPP) v. Willoughby [2005] IECCA 4 and Delaney & McGrath on Civil Procedure. The respondent’s submissions (from the Hand side), dated 26th June 2025, essentially refer to the criteria set out in Murphy v. Minister for Defence [1991] 2 IR 161 and the evolution of the rules established by that authority. There is a separate reference to Ennis v. AIB [2021] 3 IR 733. What is (and what is not) allowed under Murphy v. Minister for Defence had already been the subject of extensive argument in the written submissions delivered in the main appeal, by reference to the application to admit the proposed evidence of Ms. O’Reilly and Mr. Cummins. Both sets of supplemental submissions are remarkably short, as directed by this court. The McGregor submissions run to 935 words; the Hand submissions run to 1,000 words.

39. This is the (regrettably lengthy) backdrop to the dramatic events of the morning of the 1st July 2025.

40. Once appearances had been taken on the first day of the appeal, counsel for Mr. McGregor (Mr. Mulholland KC, SC) addressed the court as follows: - “In the first matter which was scheduled to come at the outset of this appeal was in relation to ground 5 in relation to the fresh evidence application which I had intended to deal with. We have yesterday received further submissions from the Respondent and we have further reflected again in terms of the Murphy and MOD principles. We have taken a decision that we cannot sustain that ground of appeal upon application of those principles and in those circumstances both, with their obligations to this Court, and having taken instructions expressly from our client we therefore respectfully seek to withdraw that ground of appeal this morning, Judges.”

41. The first position taken on behalf of Mr. McGregor, therefore, was that a further reflection on the relevant legal principles had been provoked by Ms. Hand’s written submissions on the proposed evidence from Professor Crane. However there was absolutely nothing in those written submissions that was new. There was, for example, no reference to an authority previously unconsidered by the McGregor side. There was no reference to a foreign line of authority that may have escaped the notice of the parties up to the point at which Ms. Hand’s final submissions were delivered. There was no fresh argument raised by reference to the rules of court or any domestic regulation or legislation which could have provoked a rethink. The reference to the “further submissions from the Respondent…” is therefore somewhat puzzling.

42. In addition, Mr. McGregor at all times has been represented by responsible solicitors and counsel. Nothing said in this judgment should take from that fact. It would be expected that such a legal team would have stress tested the proposed evidence of Ms. O’Reilly and Mr. Cummins long before the eve of the appeal hearing. As already noted, the affidavits of these two proposed witnesses were sworn in the middle of January. Their evidence had been the subject of dogged opposition since the notice of appeal referred to what Ms. O’Reilly and Mr. Cummins would say. It will be remembered that Ms. Hand had referred (in an affidavit sworn in April) to this proposed evidence as lies. It is singularly unlikely that the day before the appeal was due to commence was the first time that a serious attempt had been made to analyse whether or not this proposed new evidence (of Ms. O’Reilly and Mr. Cummins) met the requirements of the established case law.

43. When Ms. Justice Kennedy put it to counsel for Mr. McGregor that “nothing has changed”, and in a second account as to how this decision to withdraw the “new evidence”

had been reached, counsel stated (at p. 9 of the Transcript): -

“Nothing has changed insofar as the jurisprudence remains the same, but insofar as a reflection upon the evaluation of the legal principles in conjunction with both this Court’s reservations, as I understand it, on the last occasion whether in fact there was a new ground outside of Murphy upon which Prof. Crane could be advanced, we find no legal authority about that.”

44. The reason why the “new evidence” ground of appeal is abandoned was now, to some extent, accounted for by the fact that there was no legal authority for Professor Crane’s “new evidence”, and by “this court’s reservations…”. In fact, the absence of any direct authority on whether evidence such as Professor Crane’s could be admitted was known to both legal teams before the hearing on the 18th June. At the hearing on the 18th June, there were no “reservations” displayed by the court. It was put to both sides that this was uncharted water, and both sides accepted that this was the case.

45. A third reason was then advanced as to why the “new evidence” element of the appeal was being abandoned at the last moment. Counsel for Mr. McGregor stated (at p. 10 of the Transcript): - “We have looked at both [Professor Crane’s evidence and the proposed evidence of Ms. O’Reilly and Mr. Cummins] in tandem as one corroborating the other. In the absence of Prof. Crane there is no corroboration from Ms. O’Reilly’s evidence per se and, by foot of that and having taken instructions upon this, it is our view that it is not a sustainable ground, it is as simple as that, Judge.”

46. This is a very important submission. As already noted, Ms. O’Reilly and Mr. Cummins’ evidence was never in any way stated to be dependent upon the evidence of Professor Crane being admitted. Indeed, on the basis of Mr. Staines’ original affidavit grounding the application to admit the evidence of Ms. O’Reilly and Mr. Cummins, at that point in time the McGregor side simply did not know what view Professor Crane would reach about the timing of the bruising on Ms. Hand’s body. On the McGregor side, there was therefore (a) no knowledge about whether Professor Crane would in fact support the evidence (in particular) of Ms. O’Reilly and (b) even if Professor Crane supported Ms. O’Reilly’s account, there was no authority whatsoever available to the McGregor side to sustain the admissibility of such evidence on the part of Professor Crane. Despite these significant facts, the evidence of Ms. O’Reilly and Mr. Cummins was still (until the 1st of July) sought to be admitted.

47. Furthermore, Ms. O’Reilly’s proposed evidence was crisp, clear and coherent. It did not need to be corroborated by Professor Crane or any other witness. The only question was whether Ms. O’Reilly’s evidence was true; in other words, would it withstand crossexamination?

48. When pressed, counsel repeated the proposition that Ms. O’Reilly’s evidence effectively could not be admitted without that of Professor Crane. As I have observed more than once, the first time this fundamental dependence of one piece of evidence on the admission of the other had ever been advanced by the McGregor side was on the 1 st July. This was despite numerous court hearings and the exchange of extensive paperwork. In repeating this proposition, counsel put it this way (at p. 11 of the Transcript): - “So it was, with a holistic view to both being run in tandem and with one not being admissible, then in my respectful view the strength of the other was not sufficient to sustain that ground.”

49. For the reasons I have already set out, this is an unsustainable position. Unsurprisingly, when questioned further by the court, counsel then shifted his position yet again. At page 13 of the Transcript, and having been informed by Ms. Justice Kennedy that the evidence of Ms. O’Reilly and Mr. Cummins was not “dependent upon the evidence of Professor Crane”, counsel stated: - “Well, respectfully what I did say was that was part of our rationale but I have to take a holistic view in terms of the basis of advancing this ground of appeal and, in my professional opinion, my view was I could not sustain the ground in the circumstances. It wasn’t exclusively based on Prof. Crane that that was part of my thinking.” (emphasis added)

50. Having stated twice that doubts about the admissibility of Professor Crane’s evidence had been the reason why the evidence of Ms. O’Reilly and Mr. Cummins was now to be withdrawn, counsel for Mr. McGregor finally conceded that this was not the sole or exclusive reason for this development. Counsel concluded on an elaboration of his most recent position (at p. 14 of the Transcript) in the following terms: - “Prof. Crane was one aspect of that equation. The other aspects, respectfully, that I have discussed with my client, I have taken instructions on, are privileged matters respectfully which I don’t intend to go into before this Court. There are reasons that counsel has for seeking not to proceed with this ground and that is as far as I can respectfully take that.”

51. In retrospect, it may have been wiser to start with that position rather than merely end with it. Lawyers are, of course, often required to give advice to clients and clients are perfectly entitled not to have that advice divulged, either directly or indirectly. However, what is not permissible is for one side in a case to purport to give a reason as to why a very important development has occurred, when that reason is not fully or accurately described. On my analysis, and for the reasons I have set out in commenting on these exchanges, it was never the case that doubts about the admissibility of Professor Crane’s evidence (such as it was) could logically have formed either the main or any significant reason why the attempt to introduce the “new evidence” of Ms. O’Reilly and Mr. Cummins was abandoned. If anything, the fact that there were significant legal obstacles in any attempt to introduce the evidence of Professor Crane formed a minor subsidiary consideration. Some other factor, upon which this court does not wish to speculate, led to the abrupt decision to scuttle one of the more significant (and certainly the most public) grounds of appeal advanced on behalf of Mr. McGregor.

52. In those circumstances, it is necessary to consider the applications made on behalf of Ms. Hand. On the first day of the appeal hearing, and after counsel for Mr. McGregor had addressed the court on this matter, counsel for Ms. Hand (Mr. Gordon SC) maintained that Mr. McGregor required leave to withdraw the two motions with regard to “new evidence” and the relevant grounds of appeal. However, he is mistaken in that regard. Counsel was unable to identify any rule of court supporting his submission. At the end of proceedings on the second day of the appeal (the 2nd July 2025) counsel returned to the issue. In doing so, he referred to O. 26 of the Rules of the Superior Courts which governs proceedings before the High Court. It does not, contrary to the submission made by counsel, deal by analogy with proceedings before this court. The withdrawal of appeals before this court are dealt with under O. 86A, r. 20. This allows the complete or partial withdrawal of an appeal without leave of the court; if an entire appeal can be abandoned without the court’s permission, it would appear strange if leave of the court is needed in order to withdraw a motion in an appeal. For these reasons, I do not believe that Mr. McGregor was required to obtain leave of the court to withdraw these elements of the appeal. Even if he was, as Ms. Justice Kennedy observed on behalf of the court in dealing with the matter on the first day of the appeal, leave would have been granted. It would have been entirely otiose to require Mr. McGregor’s lawyers to advance two motions on one very significant ground of appeal in circumstances where they had decided (for whatever reasons) not to do so.

53. There remains, however, Ms. Hand’s application with regard to costs. The whole issue of the admission of “new evidence” has taken on a life of its own in this appeal. In a way, that is not surprising. The prospect that the verdict of a jury in a highly publicised trial, reached after many days at hearing, should be upset as a result of the late discovery of critical evidence is a compelling one. One would need to have been entirely removed from ordinary life in Ireland not to realise that the existence of these new witnesses has attracted no little attention since it was first revealed earlier this year. While counsel for Mr. McGregor submitted to us on the 1st July that nowhere do any of these new witnesses say in terms in their affidavits that Ms. Hand was lying in her evidence, the fact remains that the entire import of the evidence of Ms. O’Reilly in particular is to the effect that Ms. Hand’s testimony at the trial was materially incomplete and misleading. In addition, the Instagram messages sent by Ms. O’Reilly (and exhibited to her replying affidavit) clearly accuse Ms. Hand of “lies”. To put it another way, I do not think that counsel for Ms. Hand was exaggerating when he said that the emergence of this “new evidence” had put his client “through the wringer”. Had it been put to Ms. Hand at the trial of the action during cross-examination that Ms. O’Reilly would give this evidence, and if Ms. O’Reilly then never subsequently appeared in court to actually provide this testimony, there is a real likelihood that aggravated damages would have been legitimately sought on behalf of Ms. Hand. That possible redress is not available to Ms. Hand in the current circumstances, as this court has no role in awarding damages given the limited grounds of appeal before us.

54. The court is, however, in a position to provide some redress to Ms. Hand through an award of costs. While there was some debate in the separate appeal by Mr. James Lawrence (also a defendant to these proceedings) about whether costs in cases such as this should be decided by reference to s. 96 of the Courts of Justice Act 1924 or s. 169 of the Legal Services Regulation Act, 2015, it was ultimately accepted that no real difference relevant to these proceedings could be identified between the two provisions.

55. Section 169(1) of the Legal Services Regulation Act, 2015 provides that an unsuccessful party may nonetheless have costs awarded in its favour “having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including…

(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings…”

56. Other relevant provisions relate to the manner in which the parties conducted all or part of their cases, and the conduct of the parties “during the proceedings”.

57. In this case, regardless of the ultimate outcome of the appeal by Mr. McGregor, Ms. Hand is entitled to all of the costs relating to the two motions to admit fresh evidence. Mr. McGregor raised the issue of “new evidence”, it was pressed unremittingly from the time the notice of appeal was lodged, and it was abandoned at the last possible moment in circumstances which remain somewhat mysterious. As to the level of the costs to be paid by Mr. McGregor to Ms. Hand in respect of these aspects of the appeal, it is fair to say that she has been completely vindicated in the position she took in the teeth of the proposed evidence of Ms. O’Reilly and, to a lesser extent, Mr. Cummins and Professor Crane. Ms. Hand robustly took the stance that the evidence of Ms. O’Reilly was wrong; it followed from this that the evidence of Mr. Cummins was mistaken and that the evidence of Professor Crane should simply not be admitted. The abandonment on the part of Mr. McGregor of all of these applications can only be seen by this court as an acknowledgment, for the purpose of these proceedings, that Ms. Hand was correct. Certainly, no plausible reason has been advanced on behalf of Mr. McGregor as to why these extremely important and contentious parts of his appeal have been cast aside.

58. In Geaney v. Elan [2005] IEHC 111, Kelly J. (as he then was) ordered costs on a solicitor and client basis in order to express the court’s disapproval of the behaviour of the defendant company. That judgment has been cited with approval by Laffoy J. in Shell E&P Limited v. McGrath [2007] IEHC 144, by the Court of Appeal (Faherty, Murray and Collins JJ.) in Dully v. Athlone Town Stadium Limited [2021] IECA 337 and again by the Court of Appeal in my judgment in Howley v. McClean [2025] IECA 77. The relevant legal principles are helpfully summarised by Barniville J. (as he then was) in Trafalgar Developments v. Mazepin [2020] IEHC 13 at paragraph 54, as follows;

(1) The normal position is that where costs are awarded against one party in favour of another, those costs will be taxed or adjudicated on the party and party basis.

(2) The court has a discretion to depart from the normal position in the particular circumstances of the case, where the court thinks fit to do so, and to direct that the costs be taxed or adjudicated on the solicitor and client basis.

(3) There has to be a good reason for the court to depart from the normal position and to make an order for costs on the solicitor and client basis (or on the even more severe basis, the solicitor and own client basis).

(4) The court may exercise its discretion to order costs on the solicitor and client basis where it wishes to mark its disapproval of or displeasure at the conduct of the party against which the order for costs is being made. Barniville J. then goes on to list examples which may constitute such conduct, and to set out the approach that the court should take in considering such an order.

59. In the current case, it must be remembered that (subject to what I say about the other grounds of appeal) Ms. Hand had prevailed in one of the most hard-fought trials of recent years. A great deal of her vindication must have been found not only in the award of damages, but in the fact that the jury believed her. The jury’s belief that she had been raped was subject to a root and branch attack in this appeal by the deploying of this “new evidence” by the McGregor side. None of the many factors identified by counsel in explaining the late withdrawal of this “new evidence” amounted to anything that could not have been done months ago. Indeed, even in the six or seven weeks between the swearing of affidavits by Ms. O’Reilly and Mr. Cummins and their appearance in the notice of appeal, there was plenty of time to see whether or not the evidence was likely to be admitted by this court. There was abundant opportunity to sit down with these new witnesses and test their account of events. There is no reason why the “new evidence” could not have been interrogated, and a final

decision made as to whether to press for its admission, long before the 1st July.

60. The enigmatic “privileged matters” which led the McGregor side to forsake this evidence do not really assist them. The fact is that it is difficult to see any reason why Ms. Hand should have to have any liability for costs in respect of this aspect of the appeal. Absent an order of this sort, Ms. Hand is likely to have some residual liability for costs in connection with the “new evidence” issue. The conduct of Mr. McGregor, in publicly introducing evidence which fundamentally called into question the correctness of the jury’s verdict and the testimony of Ms. Hand which had lead to it, only to abandon that evidence when it was about to be tested is behaviour which deserves to be marked by a palpable sign of the court’s displeasure and disapproval. I would therefore award Ms. Hand her costs of the “new evidence” motions on a legal practitioner and own client basis against Mr. McGregor.

The Issue Paper

61. After the evidence closed, the parties attempted to agree the questions to be put on the Issue Paper for the jury. One of the questions agreed was the following: - “Did Conor McGregor sexually assault Nikita Ní Laimhín?”

62. The trial judge rejected this particular formulation of the issue. Instead, he replaced it with this question: - “Did Conor McGregor assault Nikita Ní Laimhín, yes or no?”

63. In their written legal submissions, counsel for Mr. McGregor explained why they claim that this change in the Issue Paper rendered the trial unfair with the result that the verdict of the jury should be upset. They make the point, correctly, that the tort of assault requires “prior apprehension of a battery …” and that the tort of battery is defined as “the direct application of physical contact…”, but that the ordinary understanding of the word “assault” is a physical attack on another person. Counsel then pointed out that the ordinary meaning of the verb “sexual assault” is the act of forcing someone to take part in sexual activity or of unwanted touching in a sexual way.

64. The gist of the appeal on this point can be summarised in the following three paragraphs of the written submissions: - “32. The case alleged by the Respondent was that she had been raped by the Appellant. The Respondent’s evidence was not that she had been subject to assault, in its legal meaning, being the apprehension of immediate battery without consent. Nor was her evidence that she had been subject to assault, in its ordinary meaning, being battery. Therefore it is submitted that the trial judge erred in asking the jury to adjudicate on whether the Appellant had “assaulted” the Respondent.

33. The inconsistency between the case made by the Respondent and the question posed to the jury raises the real risk that the jury reached the verdict that the appellant was liable for ordinary assault (or battery) of the Respondent, rather than the rape of the Respondent. Indeed, it may be observed that by reason of the direction of the trial judge it remains impossible to discern what view they took. It is entirely possible given the direction that there may have been competing and wholly inconsistent views on the jury that gave rise to the verdict.

34. In addition the award of general damages made by the jury, and the fact that no award of aggravated or exemplary damages was made, is not consistent with the finding of rape or sexual assault in the circumstances of this case. As such, it is submitted that the jury was incorrectly instructed on the appropriate question of fact to be tried.”

65. The written submissions of counsel for Mr. McGregor continue by quoting from the trial judge’s charge to the jury; this is a matter to which I will return in some detail shortly.

66. Finally, there is appended to this ground of appeal an argument that “a verdict in favour of [Mr. Lawrence] was relevant to in support of a verdict in favour of the appellant…”. It is argued that the jury accepted the defence advanced by Mr. Lawrence, and that this “fundamentally undermined the evidence advanced by” Ms. Hand in relation to Mr. McGregor. I can deal with this last point quickly. In his charge, the trial judge expressly referred to the possible interplay between the evidence of Ms. Hand about her alleged rape by Mr. McGregor and her allegations against Mr. Lawrence. Most pointedly, as Ms. Hand’s counsel argue in their written submissions, the trial judge said (at Day 9, page 156);

“…are you persuaded by the overall evidence that Nikita Hand is more likely to be telling the truth on that issue [relating to Mr. McGregor] than not…You can of course consider as part of your overall evaluation on this issue whether you accept the evidence of James Lawrence that Ms. Hand had sexual intercourse with him twice. Did they have sex and, if so, what does that tell you? Again here there is a dramatic parting of the ways between both sides. Mr. Lawrence’s evidence is that she had two bouts of sex with him. That’s his evidence. Now, that, at least in my view, can’t fit in with her evidence that while she was up in the penthouse before the meal, burgers were ordered, she recalled what happened to her earlier and discussed it with Mr. Lawrence who treated her properly and took steps to calm her down and get her food or drink. One side or the other is telling lies in relation to this. It would be improbable that a person who had just vouchsafed to another person that they had been attacked by that person’s friend would then engage in two bouts of consensual sex with that person…”

67. This is a clear direction by the trial judge that, in considering the veracity of Ms. Hand’s allegations against Mr. McGregor, they could consider her narrative relating to Mr. Lawrence. This meets fully this aspect of the relevant ground of appeal. This passage of the trial judge’s charge was, unsurprisingly, not addressed in oral submissions.

68. As to the argument that the decision of the jury on the claim against Mr. Lawrence in some way undermined the evidence of Ms. Hand against Mr. McGregor, there are two ways of interpreting the verdict of the jury as far as Mr. Lawrence is concerned. The first is that, consistent with the evidence given by Ms. Hand, she never in fact had intercourse with Mr. Lawrence. This evidence is surprising given that Ms. Hand’s lawyers had pleaded a case that she had been raped by Mr. Lawrence, but ultimately the evidence of Ms. Hand did not support that contention. The second possible interpretation of the jury’s verdict is that Mr. Lawrence and Ms. Hand had consensual intercourse. The argument advanced on behalf of Mr. McGregor is contingent on the verdict of the jury having only one meaning, namely the second of the two that I have described. There is therefore no inevitable inconsistency between the verdict as far as Mr. Lawrence is concerned and the verdict as far as Mr. McGregor is concerned. To find that such an inconsistency exists would be to presume to know the reasoning of the jury. This is simply not open to us.

69. With regard to the substance of the case made on behalf of Mr. McGregor by reference to this ground of appeal, in my view the trial judge was clearly aware of the possibility that the jury might be confused by posing the question by reference to legal definitions of the tort of assault and the tort of battery. Indeed, no party asked him to do so. As already noted, the parties agree that the phrase “sexually assaulted” was the appropriate one. This involved the use of the word “assault” in the way it would be ordinarily understood by a member of the jury, as opposed to by a lawyer.

70. The trial judge was also clearly attempting to simplify matters for the jury when he explained the question to counsel (at day 8, p. 27) as follows: - “‘Did Conor McGregor assault Nikita Ní Laimhín, yes or no?’ Very straightforward question, using their names rather than the plaintiff and the defendant because it is easier for juries to cope with that.”

71. As counsel for Ms. Hand observe in their written submissions, the level of objection to the issue being framed in this way was minimal: - “Mr. Farrell: Yes, leaving aside that issue, Judge, I don’t think there is any huge difference between Mr. Gordon’s draft Issue Paper and yours. The only small point of detail is the issue that is framed as assault, it seemed to us that Mr. Gordon’s initial draft -- Mr. Justice Owens: No, assault is the word. Assault is the word. Let’s not inject anything unnecessary into it.

Mr. Farrell: All right, so be it.”

72. Both sides have referred, in their written submissions, to various parts of the trial judge’s charge to the jury. It is submitted on behalf of Mr. McGregor that the charge did not adequately remedy the confusion which (the McGregor side says) was caused as a result of the wording of the issue. The Hand side maintained that the charge left the jury in no doubt that what was alleged against Mr. McGregor was a sexual assault.

73. I have therefore considered, in no little detail, the charge of the trial judge which began shortly before 4pm on day 9 of the hearing, and concluded shortly after 3pm on day 11 (the 21st November 2024).

74. At the very outset of his charge, the judge said: -

“I will explain what a tort is, which you’ve probably heard of, and what the tort of assault is in the context of the issues in this trial.” (emphasis added)

75. A short time later, the judge addressed the question of assault. He said (at p. 142 of Day 9): - “Nikita Hand is claiming damages for the tort of assault. Now, first of all, what is a tort? Well, a tort is -- this is a civil case as opposed to a criminal case. A tort, in short, is a civil wrong. If a plaintiff proves to a court that a defendant has committed a civil wrong against a plaintiff, the law allows that court to award monetary compensation, which is called damages. So assault is a tort, a civil wrong. A claimant who proves to a court that he or she was assaulted by a defendant is entitled to damages if the assault is proved. The Court then goes on to assess damages by reference to legal principles which apply to awards of damages.”

76. The court then addressed the “obligation of proof…”. At page 144 he began to address the question of assault (as he had indicated at the start of the charge) “in the context of the issues in this trial”.

77. He addressed the jury (at p. 144 of Day 9) as follows: -

“Does the evidence you have heard and seen prove to you that Mr. McGregor assaulted Ms. Hand in the bedroom of the penthouse in The Beacon Hotel on 9th November 2018? Does the evidence you have seen and heard prove to you that Mr. Lawrence assaulted Ms. Hand in the sitting room, I think it was, of the penthouse of The Beacon Hotel on 9th November 2018?”

78. A minute later, he stated: -

“Now, what are the issues in it? Well, she alleges in this action that she was raped by each of these two men in separate instances. They say no. They admit sex. Mr. McGregor says the sex was consensual. Mr. Lawrence says that the sex was consensual…Nikita Hand has sued Conor McGregor alleging that he raped her in the bedroom of the penthouse suite of The Beacon Hotel on the afternoon of 9th December 2019 (sic). As I have said, Conor McGregor denies this. He doesn’t deny that he had sexual intercourse with her. His defence is that he had sex with her and that she not only consented to it, but was an enthusiastic participant.”

79. Having dealt briefly with the case against Mr. Lawrence, the trial judge continued (at p. 146): - “I take Ms. Hand’s case against Mr. McGregor first. The obligation of proof means that in relation to her case against Conor McGregor, Nikita Hand must prove to you that she was assaulted by Conor McGregor. In simple terms, this would be proved if, having examined all the evidence, you are persuaded by the evidence which you accept that Ms. Hand’s account that Mr. McGregor assaulted her by raping her in the penthouse bedroom of The Beacon Hotel is more likely than not to represent the objective truth of what happened on that Sunday afternoon in the bedroom.” (again, the emphasis is mine)

80. A minute later, the trial judge continued: -

“So the first question on the Issue Paper then directs you to that issue, you are presented with a simple choice of yes or no. Now, when I say more likely than not I am referring to the standard of proof which you as judges must apply in making your decisions in relation to any disputed evidence or inference on the ultimate issue as to whether or not you are satisfied that Mr. McGregor assaulted Ms. Hand by raping her.”

81. It is worth recollecting at this point that the first question on the Issue Paper is the question which Mr. McGregor’s lawyers now say had the potential to mislead the jury. However, in several of the sections of the charge from which I have quoted—in particular the last portion—there could be no doubt on the part of any member of the jury that the question they were answering when addressing question 1 of the Issue Paper was whether or not Mr. McGregor “assaulted Ms. Hand by raping her.”

82. The judge went on to address the jury about the balance of probabilities, the assessment of evidence, and the drawing of inferences. He returned to question 1 on p. 152 of the Transcript where he said: - “So you ask yourself in relation to the bits and pieces of evidence where you must resolve conflicts: Am I satisfied of this or that piece of evidence or inference I am asked to draw which tends to support Ms. Hand’s case, using the balance of probabilities standard. Putting all these things together, am I satisfied on the balance of probabilities that Mr. McGregor raped her? Does the evidence show me that it is more likely than not that he raped her? If the answer is ‘yes’ in inverted commas, you return a ‘yes’ answer to question 1. If you are not so satisfied you must return a ‘no’ answer.”

83. Again, I do not think that the trial judge could have been clearer in explaining what was meant by question 1.

84. Some minutes later, the trial judge gave the following direction (at p. 153 of the Transcript): - “The evidence only gives you, in relation to this, particularly in the case against Mr. McGregor, two versions of events for you to consider on the issue of whether Mr. McGregor raped Ms. Hand. The first is that Mr. McGregor assaulted Ms. Hand by having sexual intercourse with her without her consent - rape. The second is that Ms. Hand and Mr. McGregor had vigorous sexual intercourse, not once, but twice. The evidence does not make available any third version of events for you to consider on that particular issue.”

85. Again, the trial judge has identified with limpid clarity exactly what the issue is that the jury has to decide. Some minutes later (at p. 155 of the Transcript) the judge gives this further direction to the jury: - “You ask yourself does the evidence which you accept prove to me that Conor McGregor assaulted Nikita Hand. The first question on the Issue Paper doesn’t refer to sexual assault, it just refers to assault but that is what it is all about. In simple terms you are being asked to adjudicate on whether you are persuaded of the truth of Ms. Hand’s evidence of what took place in that bedroom involving Mr. McGregor.”

86. Here the trial judge has again addressed the very aspect of the Issue Paper which Mr. McGregor’s lawyers now contend could give rise to an ambiguity. The trial judge has dealt with this issue head on. He makes it quite clear that where the first question on the Issue Paper refers to assault, the case is in fact “all about” sexual assault or, as he said on numerous occasions prior to this point in the charge, whether or not Mr. McGregor raped Ms. Hand. Notably, there was no requisition raised on this aspect of the judge’s charge.

87. The trial judge then proceeded to deal with the claim against Mr. Lawrence. In introducing this, he drew a distinction between the case made against Mr. Lawrence and the case made against Mr. McGregor, which he described (at p. 158 of the Transcript) as being “somewhat different”. In explaining the difference, the trial judge repeated: - “She says that she remembers Mr. McGregor raping her and that she did not consent in the sense of making her wishes clear.”

Before moving on to question 2 on the Issue Paper, the judge again stated (at p. 160 of the Transcript of Day 9): - “The trials against Mr. McGregor and Mr. Lawrence, as I repeat, are separate trials. While much of the same evidence is relevant to your decisions in both trials and can be considered in relation to the separate issues of whether they raped Ms. Hand, it does not follow that because you reach a ‘yes’ or a ‘no’ conclusion on one question that you must reach the same conclusion on the other question on which you are required to give a ‘yes’ or a ‘no’ answer.”

88. Once again, the trial judge has directed the jury that the assault on her alleged by Ms. Hand is a rape by Mr. McGregor.

89. The trial judge concluded the first day of charging the jury with some sage observations about the linked issues of drunkenness, drug taking, and consent to sexual activity.

90. A certain amount of the start of the following day was taken up with directions to the jury about the award of damages. As noted in the written legal submissions on behalf of Ms. Hand, the judge gave a very full direction about the question of damages. On the cautious side, he warned the jury not to double count (p. 40 of day 10) and of the need for proportionality (p. 42 of day 10). The jury were also charged about the possibility of awarding aggravated or exemplary damages, though the judge acknowledged (at p. 42 of day 10): - “I don’t know whether you have a view or will have a view on aggravated damages, that is all a matter for you way down the line in the jury room.”

Ultimately, no aggravated or exemplary damages were awarded.

91. The trial judge, towards the end of this section of the charge, also insisted that the jury carry out “an evidence based analysis in relation to damages”; p. 47 of the Transcript. He went on: - “Even if you, as I said, even though you were not asked to explain the basis of your award, you should proceed as if the Court of Appeal is in fact able to overhear your deliberations.”

92. In support of his ground of appeal, Mr. McGregor’s counsel rely upon the amount actually awarded to Ms. Hand. As I have noted at para. 63 of the judgment, they assert that the absence of an award of aggravated or exemplary damages was not consistent with the finding of rape or sexual assault. The reason why no aggravated damages were awarded is something that must remain with the jury. The McGregor side argues that some or all of the jury—notwithstanding the way in which they were directed to approach the award of damages and despite the constant references to the claim that Mr. McGregor raped Ms. Hand—nonetheless proceeded to assess damages on the basis that the assault was not a sexual one. This is simply a fanciful suggestion, which cannot withstand any careful analysis of the judge’s charge. It is also, for reasons to which I will return, inconsistent with the authorities on trying to guess the jury’s intention by reference to the quantum of an award.

93. At 11:15am on day 10 the judge concluded this part of his charge. At 11:30 he commenced a summary of the evidence. That summary took the balance of the trial judge’s charge to the jury. As already noted, it concluded at around 3pm on day 11.

94. I have no doubt that the overall effect of the judge’s charge was to inform the jury that the central allegation made by Ms. Hand against Mr. McGregor was that he had raped her, and that that was the form of assault mentioned in question 1 of the Issue Paper. In their written submissions, counsel for Mr. McGregor placed special emphasis on a quote from the trial judge at day 9, at p. 172 which reads as follows: - “So what’s the tort of assault? All you need to know for the purpose of the issues in this trial is that an assault is any intentional, non-consensual contact initiated by one person on another. Intentional, non-consensual contact.”

95. As a general proposition, this is clearly correct. It also introduces a section of the judge’s charge dealing with the question of consent, with which no objection has been taken. The comment is made by the trial judge at 4:43pm on day 9. At 4:42pm (in other words, one minute earlier) the judge had stated: - “In this action, Nikita Hand, as I said, claims that Conor McGregor assaulted her by violently raping her and that the various cuts and bruises found by Dr. Kane were sustained during the incident.”

96. It is simply unreal to suggest that, faced with the issue framed in such a brutally clear way by the trial judge, any member of the jury then became confused about the meaning of question 1 on the Issue Paper because the judge subsequently began to talk about “intentional, non-consensual contact…”.

97. There remains the question of the quantum of the award of damages, and whether or not this is a sign that the jury has misunderstood the meaning of the Issue Paper. In their submissions, counsel for Ms. Hand refer to the decision of this court in Kinsella v. Kenmare Resources Plc [2019] IECA 54. In Kinsella the plaintiff was awarded €9M in compensatory damages and €1M in aggravated damages arising from a press release issued by the defendants. In the section of the judgment beginning at para. 24 and headed “The size of the award as a factor in this ground”, this court referred to the judgment of the Supreme Court in McEntee v. Quinnsworth Limited (Unreported, 7th December 1993) and to Grobbelaar v. News Group Newspapers Limited [2002] 1 WLR 3024. In Grobbelaar, according to this court in Kinsella: - “The House of Lords also rejected the argument that an appellate court was entitled to look to the level of damages to support the proposition that a finding of liability made by a jury was perverse.”

98. This court went on at paragraphs 27 et seq: -

“27. I agree with the description by Lord Hobhouse of Woodborough that to assess the question of reasonableness by reference to the quantum of the award of damages is neither logical nor rational and the correctness of one verdict is not dependent on the correctness of the other.

28. Thus the authorities establish that the size of the damages award, even if it is considered by an appellate court to be excessive and disproportionate in all of the circumstances, is not a factor to be considered when it comes to assessing the validity of the jury's finding on liability.

29. Further, in the present case this argument fails to recognise that the jury had before it an issue paper which set out in numbered and lettered paragraphs the steps it was to take in coming to its final assessment. The first question, the meanings question, was clearly distinguished from the other questions, those of malice and damages, and the assessment of the reasonableness of the jury decision must examine each individual element of the decision having regard to the fact that the jury itself was asked to separately assess and make a determination in identified steps.”

99. Just as was in the case in Kinsella, here there was a series of questions which, while mercifully short, nonetheless inevitably had separate questions as to assault and as to damages. Having said that, the argument made by the McGregor side is to the effect that there is a link between the award of damages and the comprehension on the part of the jury of what was meant by question 1 in the Issue Paper. At first blush the argument is an attractive one. However, it becomes difficult to accept as it involves this court second guessing why the jury made the award of general damages which it did. Notwithstanding the trial judge’s advice to the jury that they should assess damages as though this court was in the jury room, watching their every move, in reality the assessment of general damages is very much a matter for the jury which, classically, it does not even have to attempt to explain. Undoubtedly, the award in general damages is not a generous one. However, as is submitted by counsel for Ms. Hand, the jury may simply have taken a conservative view with regard to the damages it saw fit to award. Nevertheless, the thorough and comprehensive way in which the trial judge charged the jury and in particular the repeated reference to the assault in question 1 being nothing other than the alleged rape of Ms. Hand means (as I have already observed) that no member of the jury could have been in any doubt about what question 1 on the Issue Paper meant. The modest nature of the award, even if one is entitled to take it into account, does not carry sufficient weight when balanced against the contents of the judge’s charge for this ground of appeal to succeed. Equally, the lack of any award of aggravated or exemplary damages (which the trial judge had stated was open to the jury) is a matter for the jury. It does not, given the way in which the jury were charged, mean that the jury was in any doubt about the nature of Ms. Hand’s claim or what she had to establish to bring that claim home.

100. This ground of appeal therefore fails.

The “no comment” evidence:

101. During the course of an interview with the gardaí in connection with the investigation into Ms. Hand’s allegations of rape, Mr. McGregor gave a series of “no comment” answers to questions posed to him. In a ruling given on day 7 of the hearing, the trial judge allowed counsel for Ms. Hand to cross-examine Mr. McGregor in connection with these “no comment” answers. He did so on the basis that, during the course of his direct evidence, Mr. McGregor had “answered a question in such a way as to convey to the jury that he was providing full cooperation”; day 7 at p. 34.

102. In this appeal, counsel for Mr. McGregor say that that ruling was incorrect and that the “no comment” answers given by Mr. McGregor to the gardaí should never have been admitted.

103. Remarkably, in their respondent’s notice and at the hearing of the appeal, counsel for Ms. Hand do not seek to stand over this ruling by the trial judge by reference to the precise reasons for which it was made. Instead, they say that the trial judge was entitled to allow cross-examination in connection with the “no comment” answers because of an issue of credibility which, they say, “arose on foot of the direct evidence given by the appellant regarding his cooperation with the investigation undertaken by An Garda Síochána (day 7, at p. 30)”; respondent’s notice at B(a).

104. Despite the reference to “direct evidence”, in fact the portion of the Transcript cited in the respondent’s notice relates to cross-examination of Mr. McGregor. This is an important difference. The ruling of the trial judge was posited on the proposition that Mr. McGregor had opened the door to this line of cross examination by answers he gave in his direct evidence.

105. In considering this ground of appeal, therefore, it is important to understand exactly what is in issue by reference to the notice of appeal and the respondent’s notice. While there was a great deal of argument centred around the position with regard to criminal trials, and the constitutional basis for the right to silence, neither side is in fact arguing for the proposition that it was open to Ms. Hand’s counsel to cross-examine Mr. McGregor on the “no comment” questions without establishing a specific reason why that was permitted. The idea that these questions could be asked in any event as this was a civil trial as opposed to a criminal one, which was floated at the hearing of the appeal, is not therefore an issue which this court is being asked to decide.

106. Secondly, as I have already observed, there is no real dispute about the correctness of the trial judge’s ruling early on day 7. It is simply not defended by the Hand side. That is not to say that the challenge of that ruling is necessarily justified, and I will consider that in due course.

107. Thirdly, Ms. Hand’s counsel seek to justify the “no comment” questioning by reference to answers given by Mr. McGregor in cross-examination. This was never the basis of any ruling by the trial judge. It is, in essence, an attempt to argue a counterfactual; in other words, to support a finding of the trial judge that this cross-examination was to be permitted on the basis of different facts and rationale to his actual decision. However, the respondent’s notice does not seek to argue that the judge’s decision should be affirmed on any additional grounds; see section 2 of the notice. This line of argument does not therefore fall within the issues that this court may decide. Having said that, the concept that otherwise inadmissible evidence can be introduced as a result of cross examination (as opposed to direct evidence) is a challenging one.

108. Fourthly, Ms. Hand’s side argue that the impugned line of questioning was justifiable as it was “necessary for the Jury to understand the background as to how [Mr. Lawrence] became involved…”; respondent’s notice at B(c). While pleaded in the respondent’s notice, and the subject of some limited submissions on behalf of Ms. Hand, it is notable that— notwithstanding references in the charge to the jury—this issue of “context” at no stage formed the basis of any ruling by the trial judge as to the admissibility of this line of crossexamination. This argument will therefore be considered briefly.

109. In my view, this ground of appeal raises three questions: -

(a) was the trial judge’s ruling early on the seventh day correct;

(b) was the ruling justifiable by reference to the need for “context” to be shown;

(c) did the trial judge, in his charge to the jury and elsewhere, provide sufficient guidance to the jury so as to avoid the “no comment” evidence giving rise to a real risk of an unfair trial?

I will deal with each of these in turn.

110. With great professionalism, Mr. McGregor’s legal team had (some weeks before the trial) identified a possible legal issue in the evidence which may require a ruling by the trial judge.

“…We also agree that there is no need to give formal proof of the interviews and statements of the plaintiff and both defendants taken by that Gardai. As you point out in your latter these will arise primarily by way of being put to those parties as and when they give evidence. One reservation we would ask you to note in that regard is that insofar as the defendants made no comment in relation to questions put by the Gardai the fact of same ought not be put in evidence. This is on the basis that to do so would be to invite the jury to draw an adverse inference from a perfectly proper invocation of the right to silence. We anticipate that you may well have a different view on this issue and it would appear to be a matter that the trial judge will have to rule on in due course. Therefore, for the time being we would ask you to simple note our reservation particularly in the context of anything that might be said in terms of the opening of the case.”

No doubt conscious of the need to avoid “opening the door” to the “no comment” answers, counsel for Mr. McGregor conducted the evidence in chief carefully. At question 549 (day

6 of the trial), his counsel asked Mr. McGregor about evidence given by Ms. Hand to the effect that in the days after the 9th December 2018 there had been a lot of chatter on social media about an incident concerning a sports star. Mr. McGregor acknowledged that he recalled this. He was then asked (at Q. 551) how he felt when this was brought to his attention. He answered: - “It is not me. It is definitely not me was my initial thought. Then as I began to – then you start hearing rumours and whatnot, then I just was completely shocked, shocked and frightened beyond belief.”

111. Critically, the following exchange occurs at Q. 552: -

“Q. So what did you do? Did you seek any assistance or advice or anything of that sort?

A. The most scary thing I have ever gone through in my life at that time. I wanted to get everything correct. I wanted to dial in everything. I wanted to make sure, you know, I got the best advice. I had been advised to go to a solicitors, jot down all my notes, everything that happened, show everything I have and all the rest of it.”

112. A few minutes later, the cross-examination of Mr. McGregor began. The first theme of the cross-examination was Mr. McGregor’s alleged failure to cooperate with the gardaí by not providing his phone to them.2

113. On day 7, some 10 minutes after the cross-examination resumed, it was put to Mr. McGregor that he had read a statement to the gardaí during the course of an arranged interview, that the gardaí asked him some questions, and that: - “And I think your answer to the questions was ‘no comment’?”

Mr. McGregor’s evidence was that the gardaí never asked for it. Mr. McGregor answered “Yeah”. His counsel then intervened to say that a legal issue had arisen.

114. It is extremely regrettable that this legal issue (which was inevitably going to arise during the cross-examination of Mr. McGregor) was not handled in the manner suggested by Michael Staines & Co. While Mr. Hand’s counsel (in addressing this matter at the appeal hearing) took some responsibility for what he described as “a breakdown in communications”, he was referring to discussions between counsel. It remains an extraordinary fact that the important correspondence sent by Mr. McGregor’s solicitors did not result in a decision by Ms. Hand’s legal team to approach matters in the way that the former had suggested. It would certainly have been preferable if this had been done.

115. The issue having arisen, it was debated before the trial judge and the position taken by counsel for Ms. Hand was to the effect that the answer given by Mr. McGregor to Q. 552 on day 6 (which counsel quoted) was merely the start of the relevant evidence justifying questioning about the “no comment” answers. Counsel relied much more heavily upon a question which he had posed in cross-examination at p. 148 of the Day 6 Transcript, to this effect: - “Q. …Mr. McGregor, you have just said that your reaction to all of this was to show them everything I have?

A. Yeah.”

116. Ms. Hand’s counsel then relied upon an answer (again under cross-examination) to Q.

563 in which Mr. McGregor said: -

“I want every single shred of evidence to be put before this court.”

117. After some dialogue with the trial judge, counsel for Ms. Hand summarised his position as follows: - “[Mr. McGregor] has raised the issue as part of his case. He has raised his status as somebody who is trying to sort this out to his best and as part of that in a civil action I must be able to say to him when the Guards asked you questions you said no comment”; (day 7, at p. 25)

After subsequent submissions, and having risen to consider the judgment of the Supreme Court in DPP v. K.M. [2018] IESC 21, the judge gave his ruling on p. 34 et seq of day 7. He began with the following critical section: - “It seems to me in relation to it that when we go back and I have a look at the evidence that Mr. McGregor, in my view, opened the door to this during direct examination. He answered a question in such a way as to convey to the jury that he was providing full cooperation.”

118. In my view, the trial judge is incorrect in this reading of Q. 552. The question related to what Mr. McGregor did, and in particular whether he had sought any assistance or advice. The answer began with Mr. McGregor describing how terrified he says he was at the time, continued by mentioning his desire to “get everything correct”, and concluded with the obtaining of advice. He then describes what that advice was. Not surprisingly, it was go to solicitors, to make a note of what had happened, and to show the solicitors everything he had.

119. In his ruling, the judge went on to say that counsel for Ms. Hand (in the first question of the cross-examination) “pounced on…” Mr. McGregor’s evidence that he had provided full cooperation. In fact, counsel’s question in cross-examination (as I have already noted) was that Mr. McGregor’s reaction to rumours of what had happened in the Beacon Hotel was to show “them” everything he had. There can be no doubt that the “them” were his solicitors. They were the people referred to in the answer to Q. 552. On no view of the evidence could “them” have been the guards.

120. Precisely because the judge started from the wrong position, his subsequent analysis of the evidence is not one with which I can agree. Mr. McGregor had not, in his direct evidence, stated that he wanted “to show everything” to everyone, as the judge’s summary at p. 34, lines 19 to 22 on day 7 suggests. As Mr. McGregor (in his direct evidence and in his reply to the first question under cross-examination) did not state that he was “providing full cooperation…” or wanted to “show everything…” , it is a non sequitur to allow a line of cross-examination about his “no comment” answers to take place in order to test the truthfulness of evidence that Mr. McGregor never gave. The basic factual premise on which the judge’s ruling is based is not correct. For that reason, the judge’s summary is also incorrect. At p. 36 (line 19) the judge states: - “Now the position is in relation to this in my view, that this evidence is relevant for the reason that I have already stated. It relates to Mr. McGregor’s answers already in court and the correctness of those particular answers. It has nothing got to do with the right to silence and it can be fully explained to the jury which then, I am sure they will appreciate that one cannot draw adverse inferences in relation to that matter and I feel that I can explain that particular matter to them. So we have to assume that juries have good sense and are able to understand the instructions of judges in relation to the law and what can be explained in a very simple way.”

121. The position with regard to the judge’s ruling is quite simple. He did not correctly analyse the evidence had been given in direct evidence or, indeed, in cross-examination. The view he took of the evidence was essential to support the ruling that he made. As that view was incorrect, his ruling is not one with which I agree.

122. The second issue can be dealt with more pithily. At paragraph 36 of their written submissions, Ms. Hand’s counsel states that the trial judge permitted evidence to be given in respect of Mr. McGregor’s interactions with his solicitors “where such evidence was necessary for the jury to understand the background as to how [Mr. Lawrence] became involved.” This is not the same as suggesting that the “no comment” questions were permissible in order to allow the jury to understand “context” and instead deals with a separate aspect of this ground of appeal. Nowhere, either in their written or oral submissions, has counsel for Ms. Hand stood up the proposition that “context” permitted the putting of the “no comment” questions in cross-examination. As counsel for Mr. McGregor submits, it would have been possible for evidence to be given to the jury explaining how Mr. Lawrence “became involved” without going into the “no comment” questions at all. It is true that the trial judge, in his charge, did refer on more than one occasion to context by reference to the “no comment” questioning, but it is by no means clear from those references why the trial judge felt that specific questioning about “no comment” answers was required in order to establish the context in which Mr. Lawrence had entered the scene. More fundamentally, the trial judge never gave a ruling to the effect that the “no comment” crossexamination could proceed because of context. Mr. McGregor’s lawyers were given no opportunity to make to the trial judge the trenchant case that they made to us that the proposition that the impugned questions were permissible by reason of context was “unstatable”; p. 66 of day 1 of the hearing before this court. For these reasons, I do not think that the questioning of Mr. McGregor about his “no comment” interviews is made permissible by reference to some retrospective justification relating to context.

123. Before I turn to the third important question to be decided in respect of this ground of appeal, namely whether or not this questioning was ultimately prejudicial to Mr. McGregor in the sense that it created a real risk of an unfair trial which could not have been avoided by the appropriate interventions by the trial judge, I should refer to the fact that both the notice of appeal and the written submissions on behalf of Mr. McGregor refer to his crossexamination in respect of matters protected by legal professional privilege. It is unnecessary, at this juncture, to go into the fundamental importance of legal professional privilege in our legal system, or the extent to which it is respected by the courts. Three instances are given. The first is an exchange on day 6 at p. 149 and relates to the question of Mr. McGregor not giving the gardaí his phone. When asked why he didn’t offer it, Mr. McGregor stated that he was taking the advice of his solicitors. Counsel then asked Mr. McGregor: - “So your solicitor advised you not to make your phone available; is that correct?”

Mr. McGregor’s answer was: -

“Not necessarily that but he did not advice (sic) me to -- it just never came up.”

124. It is clear on reading the Transcript that neither the judge nor Mr. McGregor’s own counsel were able to intervene quickly enough in order to prevent Mr. McGregor answering this question. It is this particular question to which Mr. McGregor takes objection in his notice of appeal. However, when Ms. Hand’s counsel followed through on the answer Mr. McGregor gave, Mr. McGregor’s counsel intervened effectively and referred to the attempt being made to cross-examine “in respect of his legal advice”. The judge then said: - “Yes well solicitors – I am afraid in relation to it, Mr. McGregor can claim privilege in relation to his solicitor’s advice.” That was the end of the line of questioning. It is difficult to see this as anything other than an over enthusiastic counsel asking a slightly maladroit question which ultimately went nowhere. It is certainly not the fault either of the judge or of Mr. McGregor’s counsel that this questioning occurred. To say that this incident shows the trial judge permitting Ms. Hand’s counsel to cross-examine Mr. McGregor on matters protected by legal professional privilege—as is asserted at para. 45 of the McGregor written submissions—is simply unreal.

125. The further instances referred to in the notice of appeal are alleged to have occurred at day 7, pages 22 and 39. In fact, p. 22 of day 7 constitutes part of the legal argument in the absence of the jury about whether the “no comment” questions were to be permitted; this reference would therefore appear to be incorrect The third and final instance of alleged breach of legal professional privilege is said to be at p. 39 of day 7, where the following exchange occurs: - “Q. In any event, can I ask you to turn to the statement that you gave to the Guards that day?

A. Yeah.

Q. An[d] I think you say it was written down by your solicitor?

A. Yeah.

Q. Was it a collaborative affair?

A. Yeah.”

126. In certain circumstances, the question as to who composed a document may be of some significance. It does not appear to have been the case here. No objection was taken to this question. It is difficult to see how it damages Mr. McGregor in any way. The written submissions in support of this aspect of the appeal run to over three pages and refer to three different authorities, but nowhere is it explained how this exchange is one which “significantly undermined…” the fairness of the trial, to use the language of Mr. McGregor’s counsel in concluding their written submission on this point. This particular aspect of this ground of appeal was not the subject of any oral submission at the hearing. It follows that, on this subsidiary argument, Mr. McGregor will not succeed.

127. I will now return to the way in which the judge handled the evidence that Mr. McGregor had, on numerous occasions, answered “no comment” to the gardaí during his first interview with them.

128. One feature of the argument in the absence of the jury which led to the ruling of the trial judge is that, throughout these exchanges, the trial judge was alert to the possibility that an adverse inference could be drawn by the jury against Mr. McGregor simply because he had exercised his constitutional right not to say anything. Indeed, at the bottom of page 20 of day 7 the judge attempted to summarise Mr. McGregor’s position in this way: - “But he is not claiming privilege here in any event. He is simply saying that no inference should be drawn by the jury from the fact that he has exercised the right given to every citizen not to say anything at a Garda interview.”

129. Counsel for Mr. McGregor agreed. The trial judge then stated that “that is as simple as it is” and again counsel for Mr. McGregor agreed. That was the conclusion of the opening submissions by counsel for Mr. McGregor on this issue. In renewed exchanges with counsel (and after a break for everyone to have a look at K.M.), the judge again expressed the view (at p. 33 of the Transcript) that “no comment interviews are not relevant for the purpose of drawing inference relating to guilt or not but they may become relevant for some other purpose is the point.”

130. At page 36, he also commented: -

“It has nothing got to do with the right to silence and it can be fully explained to the jury which then, I am sure they will appreciate that one cannot draw adverse inferences in relation to that matter and I feel that I can explain that particular matter to them. So we have to assume that juries have good sense and are able to understand the instructions of judges in relation to the law and what can be explained in a very simple way.”

131. The jury then returned. It is clear, therefore, that throughout the ruling the judge was alive to the fact that the “no comment” interviews could not be allowed to give rise to any inference of guilt on the part of Mr. McGregor as to the alleged rape of Ms. Hand, and that the jury would have to be warned in terms about this issue.

132. In this appeal, there have been intense complaints on behalf of Mr. McGregor that counsel for Ms. Hand in effect abused the ruling of the trial judge and did not use the permission he had been granted for its intended purpose. It is suggested that, far from employing this latitude properly (by putting to Mr. McGregor that he had not cooperated with the gardaí) there were instead repeated references to “no comment” answers in order to lead the jury into believing that Mr. McGregor had something to hide.

133. While I can identify some material that sustains this rather trenchant criticism of Ms. Hand’s counsel, I do not think it is entirely made out. Immediately after the judge’s ruling, counsel put it to Mr. McGregor that the answer to every question the guards had asked him at the interview on the 17th January 2019 was “no comment” and that there were over 100 such questions in total. At Q. 30 on day 7, and again just some minutes after the ruling was delivered, counsel for Ms. Hand returned clearly and forcefully to the issue of the level of cooperation with the gardaí. While it may not have been put to Mr. McGregor in terms during the course of his cross-examination that his “no comment” answers did not suggest that he was anxious to cooperate in every way with the police investigation, nonetheless the “no comment” questions were in the main put in the context of the level of cooperation that Mr. McGregor showed to the gardaí; as I note at paragraph 136 of the judgment, there were exceptions to this.

134. While I do not agree with the extent of the criticism made of Ms. Hand’s counsel regarding the way in which he acted after the impugned ruling was made, the central issue on this topic is whether or not there was, at the end of the day, a real risk of an unfair trial. Clearly, the line of questioning was designed to prejudice Mr. McGregor by having the jury believe that he had not cooperated with the gardaí and that any evidence that he had given to that effect was wrong. The unfair prejudice potentially resulting from the questioning is, however, of a different sort. It is whether or not there was a real risk that, when they came to consider their verdict, the jury would have inferred from this line of questioning that Mr. McGregor had raped Ms. Hand.

135. Prior to the charge of the trial judge, there were a number of interventions by him which show him following through on the concern expressed in the voir dire that this topic of cross-examination should not cause the jury to draw such inferences. The first example is at p. 42 of day 7, where the trial judge states: - “And Mr. McGregor is perfectly entitled, I should say, to do that on the advice of his lawyers. You can’t draw any adverse inference, I will be coming back to that, perfectly entitled to do that on the advice of his lawyers. Everybody is entitled to do that. We are not obliged to say anything, that is what the law says. So in relation to that it may be relevant to another issue, but you can’t draw any adverse inference to Mr. McGregor in relation to that particular matter. If you are entitled to do it, you are entitled to do it, you don’t owe an explanation to anybody. It is a matter of common sense that your lawyer advises you. There we are, all right.”

This statement to the jury is made in the context of Mr. McGregor having justified a “no comment” reply on the grounds that his lawyers had advised him to that effect.

136. At page 76 of day 7 there was a clear breach by counsel for Ms. Hand of the permission granted by the court to cross-examine on the “no comment” interviews. It arose in the context of a question put to Mr. McGregor by the gardaí about the latter’s knowledge of whether or not Ms. Hand had inserted a tampon prior to the alleged assault. The trial judge sharply rebuked counsel. When counsel pressed on (asking why Mr. McGregor had not taken the opportunity during that interview to say that there was no tampon), the trial judge intervened stating: - “Disregard all of this. The purpose for which this was allowed was because the witness yesterday made evidence or gave evidence in relation to something which you might have taken the view in relation to it that the witness was saying that he was most anxious at all times to cooperate…He is being allowed to be crossexamined in relation to the no comments by reference to the truth or not truth of that. Instead it is being used for a different purpose. Can we get back to the purpose for which you were allowed, Mr. Gordon, to cross-examine the witness on these issues?”

Counsel, quite understandably, moved on.

137. The evidence of Mr. McGregor concluded just before 1pm on day 7. In the absence of the jury, the trial judge chastised counsel for Ms. Hand on the basis that he had not asked “any questions in relation to that which was the basis upon which the material was let in…”. The trial judge then said that he would make a comment to the jury about this. While counsel for Mr. McGregor indicated that he might revisit that issue at 2 o’clock, this was not done.

138. As I have already observed, I think that this analysis of the way in which Mr. McGregor was cross-examined is somewhat harsh. I will now turn to the way in which the trial judge dealt with this cross-examination when charging the jury.

139. At the very outset of the charge, the judge gave a strong direction to the jury to the effect that they must disregard things that he told them to disregard. He said that this was because they “have no evidential value”; day 9, p. 139.

140. The trial judge then spent some considerable time elaborating upon examples of inferences.

141. As already noted, the trial judge spent a considerable amount of time setting out the evidence in the case. When he came to the cross-examination on the “no comment” answers, the judge addressed the jury at some length. It is important to set it out in full. The relevant portion of the charge is day 11, at p. 60 onwards: - “[Mr. McGregor] agreed that he answered “no comment” to maybe 150 questions on the advice of his lawyers. Now I have to say something to you on this, ladies and gentlemen. You have to be very careful here. Mr. Gordon was permitted to pursue this matter in the light of Mr. McGregor’s earlier answers. In other words the answers that he had given the day before, just at the end of his direct examination from which you might well have inferred about dialling it all in and getting everything out that he wanted, so to speak, to give an impression that he wished to show everything and also to show that CCTV was preserved. In other words, leave you under that impression. Obviously counsel is entitled to cross-examine in relation to that and if matters were left that way, well the issue of his motivations so to speak couldn’t be explored by counsel at all, counsel would be entitled to ask questions in relation to a suggestion of full cooperation. That of course depends on your view as to whether Mr. McGregor was leaving you under that particular position. But there is an issue in relation to that, obviously counsel would be entitled to cross-examine on it because it mightn’t represent the full picture. So just as Mr. Gordon was entitled to ask if he had handed over his phone to the Gardaí, he would be entitled to explore this so that you have the full picture.

What you are not entitled to do in relation to that information is to draw any adverse inference that Mr. McGregor was hiding any guilty secret by no comment responses to the Gardaí. I will explain why that is so very simply. The right for that is that it is the right of every citizen not to incriminate himself or herself. That is why the Gardaí, when they caution a suspect, say that you are not obliged to say anything but anything you do say will be taken down and may be given in evidence. Now, what the Gardaí mean when they say that a person isn’t obliged to do something, they mean in fact that a person has a right not to do something. If you don’t have an obligation to do something, you have a right not to do it. That protection is given to all of us, it is a right to remain silent and it doesn’t require that, we are not obliged to justify to any court or jury our reasons for the exercise of that right. A no comment answer is the same as remaining silent. It is simply saying that I am not going to say anything.

Mr. McGregor’s position therefore was he is suspected of committing a crime. He is exercising rights protected by law in the Constitution. The context is a criminal investigation. The investigation is now over but obviously the principle remains the same in relation to it and you can’t draw any adverse conclusion in these proceedings that he didn’t comment because he assaulted Ms. Hand, you wouldn’t be entitled to draw that conclusion. So the no comments are not to be taken by you as tacit admissions.”

142. The judge then goes on to give an example of a child eating chocolate from a fridge, which I need not describe here. However, the portion of the charge which I have set out represents an unimpeachable exposition to the jury of the position with regard to the “no comment” answers. The trial judge not only explained that the jury was to draw no inference adverse to Mr. McGregor, having already explained at length what an inference was, but also explained in simple and persuasive terms why this was the legal position. A short time later, the judge made it clear that the jury was “not entitled to use [the ‘no comment’ answers] as any sort of evidence which supports Ms. Hand’s version of events.” Seconds later, he continued: - “So there we are. To say nothing when you are entitled to say nothing, there is no evidential value. Mr. McGregor’s hands(sic) in relation to it, they have no evidential value, they are simply not evidence, those no comment answers, they are irrelevant in relation to matters.”

143. Finally, in this section of the charge, the judge turned to the behaviour of counsel for Ms Hand. He stated that he had some criticism of counsel for not using the line of questioning for the purpose for which it had been allowed. He moderated this criticism by stating (at p. 64): - “…it would be impossible for you really to understand the background to how Mr. McGregor came to have the second prepared statement and also how Mr. McGregor came to subsequently refer to Mr. Lawrence in the interview without you having those pieces of information.”

While I am unconvinced by this, the judge’s view in this regard is not critical in considering whether his instructions to the jury throughout the trial were adequate in explaining to them the proper function (if any) of the questioning about Mr. McGregor’s “no comment” answers.

144. While counsel for Mr. McGregor (and counsel for Ms. Hand) have referred to a number of legal authorities in connection with this ground of appeal, neither has referred to any authority as to the test to be applied in considering whether or not the trial was a safe one notwithstanding the admission of the “no comment” cross-examination. However, in my view the proper test to apply is the well-established one of whether the jury should have been discharged. I will return shortly to the formulation of that test.

145. The position taken by counsel at the trial, on requisitions, was that the court should have told the jury to disregard those answers entirely. When the judge stated that these answers had only been “for the purpose of understanding what was going on but I made it very very clear to the jury that they weren’t to draw an adverse inference from that”, counsel responded that the evidence was “inadmissible from the get-go”. A similar attitude was taken by counsel for Mr. McGregor at the hearing of the appeal, when he argued (at p. 87):

-

“What the Judge said in the charge can’t be the starting point. The starting point is was it correct to admit this evidence.”

146. This position is a rather absolutist one. In truth, what counsel at the requisition stage of the trial and counsel at the hearing before us was suggesting is that the start and end of the matter was the ruling by the trial judge that this cross-examination should be permitted. I think this is a somewhat extreme position to take. Not every error in the conduct of a trial will lead to a discharge of the jury, nor to a successful appeal. It may well be the case, as counsel for Mr. McGregor submitted to us, that a party who has received an adverse ruling is entitled not to seek a discharge of the jury but rather to bank it for use at the appellate stage. For the purposes of this judgment, I am prepared to accept that the fact that no discharge of the jury was sought does not in itself prevent Mr. McGregor from raising this ground of appeal. However, one cannot overlook the fact that counsel for Mr. McGregor did raise a requisition on the charge and did ask the judge simply to tell the jury to disregard in their entirety the “no comment” answers. This was no doubt a requisition raised in good faith. It would follow that, had the trial judge acceded to that requisition, it would have been more difficult for Mr. McGregor to sustain this ground of appeal. The trial judge would have done exactly what the McGregor side asked him to do in his charge in respect of the disputed cross-examination.

147. While the trial judge did not tell the jury to disregard the “no comment” answers, he did tell them repeatedly and in clear terms that they should not consider the evidence as supportive of Ms. Hand’s case or relevant to the question of whether or not Mr. McGregor raped Ms. Hand. The difference between telling the jury to disregard the “no comment” answers (as sought by Mr. McGregor’s counsel) and telling the jury that these answers “are simply not evidence…” is gossamer thin.

148. The central legal issue on this ground of appeal is whether the jury should have been discharged in light of the impermissible “no comment” questioning. The approach to be taken towards any such application is set out by Noonan J. giving the judgment of this court in Ryanair v. Van Zwol [2020] IECA 105, at paragraph 31: - “The authorities seem to be largely to the one effect, namely that the applicant for a discharge bears the onus of showing that there is real risk of an unfair trial which cannot be avoided by the trial judge making necessary rulings and giving the appropriate directions to the jury.”

149. This passage in Noonan J’s judgment was preceded by the following quotation from the judgment of the Supreme Court in Dawson v. Irish Brokers Association [1998] IESC 39 at page 6 (O’Flaherty J): - “Once again, it is necessary to reiterate, as this Court is doing with increasing frequency, that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant, or should not have been given before them, as well as in the face of adverse pre-trial publicity.”

150. Noonan J. went on to repeat the need for a party seeking a discharge to demonstrate “a real risk of an unfair trial which cannot be avoided” at paragraph 40 of his judgment. In assessing what is meant by the test, it is of some interest that Noonan J. rejected a submission that a jury should be discharged “if a reasonable and fair minded observer would conclude that there was a danger, in the sense of a possibility, that a verdict was unsafe”; see paragraph 41. That proposition, gleaned from Leech v. Independent Newspapers [2014] IESC 78, was appropriate only to cases “concerned with the issue of bias, and no other…”; paragraph 46 of the judgment of Noonan J.

151. I propose to apply the test set out by Noonan J in considering whether or not this ground of appeal is to succeed.

152. Even if one ignores the requisition and simply considers in the round the crossexamination of Mr. McGregor and the directions given to the jury (not just in the charge) by the trial judge about that evidence, I am satisfied that the potential prejudice to Mr. McGregor asserted on his behalf by his counsel is simply not established. From the time that he was considering his ruling on day 7 right through to the conclusion of his charge, the trial judge was astute to ensure that this evidence could not be seen by the jury as suggestive or supportive of a claim of rape by Ms. Hand. In my view, he did quite enough in that regard to avoid the adverse effects contended for in this appeal. It is true that the impugned cross examination of Mr. McGregor was done repeatedly and at some length. However, the directions given by the trial judge to the jury were themselves repeated and, it must be said, compelling. A real risk of an unfair trial has not been demonstrated by Mr. McGregor.

153. This ground of appeal therefore fails.

The ability of Mr. McGregor’s counsel to carry out an effective cross-examination

154. Nothing was said about this ground of appeal in the oral submissions of Mr. McGregor’s counsel except to state that this was “a very small issue raised in respect of availability of expert reports”. The notice of appeal recites that this ground relates to four expert witnesses called on behalf of Ms. Hand who gave evidence relying on their expert reports. Contrary to the principles set out in a range of cases (starting with Re. Haughey [1971] IR 2017 and concluding with O’Callaghan v. Mahon [2006] 2 IR 32), it is said that it was wrong for counsel for Mr. McGregor to be refused access to these reports.

155. As is the case with the previous ground, the basic constitutional provisions are well established. It is clear that a person against whom allegations are made is entitled to crossexamine witnesses and to do so having been made “aware of the material necessary for a proper cross-examination”; Redmond v. Ireland [2015] [2015] IESC 98, quoting the judgment of Hardiman J. in O’Callaghan at para. 13.

156. The McGregor written submissions state that counsel’s ability to cross-examine had been “significantly limited …”; para. 55 of the submission. While the four witnesses are identified, the only transcript references in respect of this ground of appeal relate to one of them (Dr. Anne Leader). Dr. Leader is a psychiatrist, but was not Ms. Hand’s treating doctor. In an exchange in the absence of the jury before Dr. Leader began her evidence, there was a complaint by counsel for Mr. McGregor about a previous witness being led. At page 61 of the Transcript of day 5, counsel for Mr. McGregor observed that he could not agree that Dr. Leader be led through her direct evidence as his side did not have a report from her. The judge had observed, just before this comment by Mr. McGregor’s counsel, that as this was an assault case there was no exchange of medical reports.

157. Early in Dr. Leader’s direct evidence, the judge informed the jury that neither of the reports prepared by her would be made available to them.

158. So far, the absence of a medical report was completely uncontroversial.

159. Some distance into Dr. Leader’s direct evidence, Ms. Hand’s counsel asked her to turn to page 3 of her report. There was an objection by counsel for Mr. McGregor, but not on the basis of any unfairness because he did not have the report. The objection, rather, was once again that he could not agree to the witness being led as he did not know what was being suggested to the witness she would say.

160. The witness then read the portions of the report to which she was directed by Ms. Hand’s counsel. Eventually (at p. 74 of the Transcript), counsel for Mr. McGregor objected in these terms: - “Judge, if the witness is going to be examined by reference to a document that she is reading, we are entitled to it and this is basic evidential --”

161. This resulted in a discussion during the course of which counsel for Ms. Hand said that the report of Dr. Leader would be furnished to Mr. McGregor’s team “on a reciprocal basis”. That was unacceptable to the McGregor side, and the evidence continued with a bemused Dr. Leader asking counsel: - “So you want me to continue reading my report?”

162. Thankfully, this was avoided. Dr. Leader’s direct evidence concluded at 1pm. There was then a very specific application by counsel for Mr. McGregor, the basis of which was that: - “The Court is fully aware of the rules around refreshing memory and use of documents to refresh memory, where a witness does it the opposing party is entitled to see the document. This witness has given her evidence by reference to a report… At the beginning, then she indicated she was going to actually just read out sections of her report, towards the end of the examination Mr. Gordon reverted to referring to the report. So, I am entitled to it, if the court needs authority for the proposition it is paragraph 3-184 of McGrath.”

163. The judge’s ruling was: -

“In all my years I have never heard that submission made, Mr. Farrell. It seems to me to be incorrect in principle in relation to it because of course the doctor is going to be giving evidence in accordance with the doctor’s report, it is not really a case for refreshing the memory in my view. Refreshing the memory is something else. Refreshing the memory relates not to that sort of thing but to where one hears something on the day and then one takes down what happened on the day and then one is asked to recall what happened on the day later. In other words, to ensure the accuracy of one’s recall of what was on the day. It seems to me that an expert report is an entirely different category to that type of exercise. All right.”

164. To his credit, the trial judge considered the matter further over lunch and informed the parties at 2:05pm that s. 45 of the Courts and Court Officers Act, 1995, excluded personal injuries actions and there was therefore nothing that could be done for the McGregor side.

165. While this was described in the written submissions of counsel for Mr. McGregor as an application which was “twice dismissed” by the trial judge, it is more accurately described as a skirmish which ended when it became clear to the trial judge that a reciprocal exchange of reports was not on given the attitude of the McGregor side. This was followed by a more formal application grounded not on any constitutional principle, but on the evidential proposition that the cross-examiner should have available to him any document being used by a witness to refresh his or her memory. Strikingly—and despite the papers in these two related appeals running to three boxes—the relevant excerpt from McGrath is not included in the Books of Authorities, the notice of appeal makes no reference to this legal issue, and we were not addressed on it at all (either in written or oral submissions). Much more importantly, no submission has been made to the court as to why the trial judge was wrong in his analysis of the situation and in particular in his distinction between a witness referring to a report on the one hand and a witness referring to a contemporaneous document on the other.

166. For the sake of completeness, I should refer to the fact that (in their responding written submissions) counsel for Ms. Hand argue that the relevant reports in respect of all four witnesses were reports prepared by experts called on behalf of Ms. Hand to address “psychological injuries, loss of earnings (a vocational assessor and actuary) and a claim for alternate housing (a housing expert)” ; paragraph 38 of the Hand submissions. It is asserted that the contents of the relevant reports had been fully pleaded in updated particulars provided to Mr. McGregor’s solicitors; this is not disputed in any way by the McGregor side.

167. In all of these circumstances, I would agree with counsel for Mr. McGregor that this ground of appeal constitutes “a very small issue” which has not been pressed in a way that would suggest that the verdict of the jury and consequent order of the High Court should be set aside. I would dismiss this ground of appeal.

A selection of alleged failures in the trial judge’s charge to the jury

168. At the start of his presentation to the court, counsel for Mr. McGregor described this as a “catch-all ground in respect of the judge’s charge.” Like the previous ground of appeal, there was no oral submission in respect of this ground, either by counsel for Mr. McGregor or counsel for Ms. Hand. I should explain that there was no pressure of time on counsel; the two appeals were set down for two days with the possibility of a third. As it happened, the appeal of Mr. Lawrence finished shortly after noon on the second day. Mr. McGregor’s appeal finished by 3pm on the first day. There was no need for the third day. Rather than not make submissions because of pressure of time, therefore, I take it that both sides feel that they have said in their written submissions everything that has to be said about this ground of appeal.

169. There are five subsets to this ground of appeal. One can summarise them in this way:

-

(a) the trial judge did not properly or adequately set out lies and inconsistent accounts provided by Ms. Hand;

(b) the trial judge failed to provide a warning to the jury about the need for corroboration given Ms. Hand’s lies to her partner at the time;

(c) the trial judge failed to explain the status of recent complaint evidence;

(d) the trial judge failed to direct the jury correctly about the significance of the evidence of Danielle Keeley and Dennis Dzdari;

(e) the trial judge failed to give directions about the cogency of the evidence the jury should rely upon when considering rape allegations.

170. With regard to the first of these aspects of this ground of appeal, as the written submissions on behalf of Ms. Hand point out, there were a number of occasions on which the trial judge charged the jury about the inconsistencies in Ms. Hand’s case and in particular in her evidence. The defence case—that Ms. Hand was lying to her then partner—was set out. The jury were told that they could not necessarily rely upon this evidence because it could consist of lies. The jury were invited to assess the credibility of the evidence of Ms. Hand. The dishonest text messages sent by Ms. Hand to her then partner were highlighted by the judge. The defence case to the effect that Ms. Hand had behaved dishonestly and given inconsistent accounts was also detailed in the charge to the jury.

171. While complaint is made as to the reliability of CCTV footage, again—as set out in Ms. Hand’s legal submissions—the judge left the jury in no doubt about the fact that CCTV footage could be reliable; he described that footage and telephone records as “silent witnesses” who had “no axe to grind”. Indeed, as Ms. Hand’s lawyers argue, the submission by counsel for Mr. McGregor that the CCTV should be looked at “very carefully” was expressly endorsed by the judge in his charge to the jury.

172. On a separate point, and as already noted at para. 84 of this judgment, the trial judge had expressly told the jury (in considering Ms. Hand’s allegations against Mr. McGregor) that they could consider as part of their overall evaluation on this issue whether they accepted Mr. Lawrence’s evidence that he twice had consensual sexual intercourse with Ms. Hand.

173. It is important to note, in this regard, that counsel for Mr. McGregor chose—perhaps wisely—not to address any element of the written submissions of Ms. Hand rebutting this (or any other) element of the final ground of appeal.

174. With regard to the second aspect of this ground, I accept the submission of counsel for Ms. Hand that the concept of a corroboration warning is one which has only been applied in this jurisdiction in criminal trials. Certainly, no precedent has been given for its application in civil trials.

175. However, even if the concept of the corroboration warning does extend to civil trials, the simple fact is that no such warning was sought by Mr. McGregor’s team. Equally, no requisition was raised on the trial judge’s alleged failure in this regard. In any event, as counsel for Ms. Hand argue, any request to the trial judge that the jury be directed that they should be slow to accept Ms. Hand’s evidence to the absence of corroboration would have been met by a powerful argument that the corroboration was there in the form of the bruising of Ms. Hand’s body.

176. In response to the third limb of this ground of appeal, namely that of recent complaint, counsel for Ms. Hand submit (correctly) that the jury were charged in respect of this issue and charged again on the foot of a requisition raised on behalf of Mr. McGregor. Extraordinarily, this requisition and the compliance by the trial judge with it is nowhere referred to in the legal submissions delivered on this point on behalf of Mr. McGregor.

177. The penultimate element of this ground of appeal relates to the evidence of Danielle Keeley and Dennis Dzdari. It is submitted on behalf of Mr. McGregor that those witnesses testified that the demeanour of Ms. Hand after the alleged rape was completely inconsistent with such a brutal assault. The evidence of these two witnesses was addressed by the trial judge on day 10 of the hearing, at p. 9 of the Transcript from line 11 onwards. However, this was in the context of the limited nature of their evidence and the fact that Mr. Dzdari was a security man employed by Mr. McGregor’s security contractor. No requisition was raised on the charge in this respect. Had there been any real concern that the trial was unfair by reason of this particular detail of the charge of the trial judge, in my view it would have been raised as a requisition. This was not a trial lacking in objection or dispute, on any side. In my view the absence of a requisition is a clear indicator that the criticism now made of the trial judge is one without any real merit.

178. Finally, one paragraph in the written submissions of counsel for Mr. McGregor is devoted to the proposition that, while the trial judge had correctly charged the jury on the onus of proof, “no judicial direction was given on the cogency of the evidence the jury should rely upon when considering allegations of rape or serious sexual assault.” No authority was provided for the proposition that the trial judge is obliged to do so. It is also difficult to know exactly what is meant by this point. The trial judge had spent a great deal of time charging the jury on individual items of evidence, the burden of proof, the drawing of inferences, and all other relevant issues that should be addressed in such a charge. Deciding whether or not the evidence is in fact cogent is really a matter for the jury. I would therefore find no merit in this ground of appeal. This view is reinforced by virtue of the fact that, as previously, no requisition was raised on this issue, thereby indicating that it is a point of no real substance.

179. This ground of appeal also fails.

180. I would therefore dismiss the appeal in its entirety.