Court of Appeal dismisses defamation appeals regarding newspaper reporting of a minor assault conviction.

THE COURT OF APPEAL

CIVIL

APPROVED

NO REDACTION NEEDED

Neutral Citation Number: [2025] IECA 256

[2025 No 126]

[2025 No 127]

[2025 No 128]

[2025 No 129]

The President

Pilkington J

McDonald J

BETWEEN

KEVIN TRACEY

APPELLANT

AND

THE IRISH TIMES LTD AND GERALDINE KENNEDY AND EOIN MCVEY

RESPONDENTS

AND

BETWEEN

KEVIN TRACEY

APPELLANT

AND

INDEPENDENT STAR LTD AND GERARD COLLERAN

RESPONDENTS

AND

BETWEEN

KEVIN TRACEY

APPELLANT

AND

INDEPENDENT NEWSPAPERS (IRELAND) LTD

APPELLANT

AND

GERRY O’REGAN AND STEPHEN REA AND TIM HEALY

REPONDENTS

AND

BETWEEN

KEVIN TRACEY

APPELLANT

AND

INDEPENDENT NEWSPAPERS (IRELAND) LTD AND PHILIP MOLLOY AND

PAUL DUNNE AND GERRY O’REGAN AND MICHAEL DENIEFFE

RESPONDENTS

JUDGMENT of the President delivered on the 3rd day of December 2025

Introduction

1. On 16th September 2004, the appellant was prosecuted in the Dublin District Court for assault. The following day, 17th September 2004, four newspapers (the ‘Irish Times’, the ‘Irish Independent’, the ‘Evening Herald’ and the ‘Irish Daily Star’, hereinafter “the newspapers”) each published an article about the court hearing. It is common case that the articles, while similar, are not identical, and that each has a different headline. One publication published a photograph of the appellant. All of the articles say that the appellant was convicted of assault and that he was given the Probation Act because the assault was a minor one.

2. The appellant issued proceedings against each of the newspapers individually on 23rd December 2008, claiming that he had been defamed. He said he was not convicted, that the assault proceedings against him were dismissed and he was given the Probation Act. He claims that the articles were published maliciously because the publishers knew that he had not been convicted of assault. He claims damages including damages for personal injury.

3. The respondents all deny liability. They each plead that s. 18 of the Defamation Act, 1961 affords them a full defence, that the publications involved a fair and accurate report of court proceedings, and the contents of the reports are therefore covered by absolute privilege.

In the alternative, they each plead that the contents of the publications are subject to qualified privilege pursuant to the provisions of the common law and/or the Constitution.

4. As is apparent, given the date of the events and the commencement of the proceedings, the proceedings have a very long history. It is not necessary to set this out in any detail. Suffice to say that on 3rd April 2025, the High Court (Bolger J) made an order that the four proceedings be heard concurrently by the same judge and jury. The order recorded that the court was informed and noted that the plaintiff withdrew any claim for personal injuries against the defendants in each of the four proceedings, made further orders regarding the preparation of the cases for trial and awarded the defendants the costs of the motions each had brought in the respective proceedings.

5. The plaintiff has appealed against each of the orders in full.

The principles to be applied to the appeal

6. Before considering the substance of the appeal, it is important to emphasise that the order appealed against is a case management decision by the High Court, directing the mode and manner of trial. It is an order made in the ordinary course of the management of litigation. It is well established that the threshold for appellate intervention in respect of such an order is very high. In Rice v Muddiman [2018] IECA 402, at para. 31, Irvine J stated: “. . . an appellate court will only set aside . . . a case management decision if the appellant can demonstrate that to fail to do so would call into question the proper administration of justice.” Irvine J observed that High Court judges, administering a list, must be afforded a significant margin of appreciation as how best to manage the court’s own scarce resources. The observations of the Supreme Court in Dowling v Minister for Finance [2012] IESC 32, and Dome Telecom Ltd v Eircom Ltd [2008] 2 IR 726, to the effect that an appellate court should not lightly interfere with a case management order are also relevant. In O’Connor v Legal Aid Board [2022] IECA 216 this Court held that an order consolidating sets of proceedings was the type of order an appellate court would be slow to set aside.

7. It follows that the order made by Bolger J is an order to which this Court must accord a significant margin of appreciation and will be slow to set aside.

8. In considering whether the order made by the High Court was one which called into question the proper administration of justice and thus is one which this Court ought to set aside, this Court must consider the power and scope of the High Court to regulate how proceedings are tried. In Delaney, MacGrath & Egan, ‘Civil Procedure in the Superior Courts’ (5th Ed. 2023), at para. 7-26, the authors note that: “As Clarke J commented in Kalix Fund Ltd v HSBC Institutional Trust Services (Ireland)Ltd, in ordering its business, a court should ensure that its resources and the resources of parties to litigation are not inappropriately wasted by unnecessary duplication. It is also important to minimise the risk of inconsistent determinations arising from different proceedings. Accordingly, where there is some commonality between proceedings, and regardless of whether the criteria for the consolidation of proceedings are satisfied, the courts have an inherent jurisdiction to make directions as to the trial of proceedings.”

9. This passage neatly summarises a number of points. The courts have an inherent jurisdiction to make directions as to the trial of proceedings. If it were otherwise, they could not properly administer justice. It is well established that in appropriate cases, the court may direct that cases may be consolidated or that related cases may be heard simultaneously. This occurs reasonably frequently and does not result in the denial of justice to the parties to either proceedings, where properly managed. This includes defamation proceedings.

10. The passage also identifies some of the factors which may be taken into account when a judge is deciding whether to consolidate proceedings, direct concurrent trials or sequential hearings. In deciding whether to hear cases simultaneously, a court is concerned inter alia with whether there will be a substantial saving of expense and inconvenience, whether the likelihood of confusion, inconsistent determinations or other miscarriage of justice may arise and whether there is a risk that awards of damages in separate trials may either overor under-compensate a successful plaintiff (see for example O’Neill v Ryanair (No 2) [1992] 1 IR 160).

The essential commonality between the proceedings

11. All four actions have been brought in respect of what is essentially the same alleged libel. The appellant says that, contrary to the published articles, he was not convicted of assault, and he emphasises that the Probation Act was applied. The order of the District Court provides: “Without proceeding to a conviction, the Court found the facts proved and did dismiss the charge pursuant to Section1(1)(i) the Probation of Offenders Act, 1907” While the four articles are not identical, the key factual point is the same in all four publications - whether the District Judge said that he was convicting the appellant of assault and that he was applying the Probation Act - notwithstanding the terms of the order which was drawn in respect of the charge. The articles were all based upon a report furnished to the newspapers by Mr Tim Healy, court reporter, who attended in the District Court and took notes of the hearing. His evidence is central to all four cases. The resolution of the factual issue of what was said by the District Court judge is a key fact common to all four cases and it is of the utmost importance that there should not be conflicting decisions on this issue.

12. The appellant does not contest that this is so, but he emphasises the differences between the articles and the publications. In my judgment the differences do not alter the fact that it cannot be in the interests of justice that there be inconsistent determinations on this point and the only way to exclude such a possibility is to ensure that all interested parties have the opportunity to lead evidence, cross examine witnesses and make submissions before the issue of fact is determined by one decision maker. The differences to which he points do not go to the heart of the liability of the newspapers; they are predominantly relevant to the claim for damages, which only arise in the event that the appellant succeeds in establishing that he was defamed by the publications. As such, they do not go anywhere near outweighing the grave risk of injustice arising from inconsistent judgments if these cases are not heard by the same judge and jury.

13. Furthermore, the appellant has quantified an element of his claims for damages in an actuary’s report which he has served in each of the proceedings in the sum of €3,351,330. In oral submissions to the court he explained that this sum represents the total damages claimed in respect of this head of damages and that, in the event that he succeeds in all four cases, this element of his claim for damages is to be apportioned between the defendants in the four different proceedings. He was unable to explain how this will occur if the cases are tried by different juries in separate trials. Clearly there is a significant risk, verging on the inevitable, that he could be over or under compensated, or that one newspaper would bear an unjust share of this overall claim compared to the other publishers.

14. The same risk of inconsistent decisions is equally present in respect of the legal question whether the articles presented a fair and accurate report of the court proceedings on 16th September 2004 - and thus are privileged pursuant to s.18 of the Act of 1961 - and the alternative question whether they benefit from common law and / or constitutional privilege if there are separate trials. The proper administration of justice requires that these issues be resolved in the same way for all four cases. It would bring the administration of justice into disrepute to have conflicting decisions on these legal questions arising out of a report of the same event. In my judgment the appellant has advanced no argument to counter this risk.

15. These very significant matters were considered by the High Court who determined that it was appropriate to direct that the cases be heard simultaneously. The appellant says that Bolger J was wrong to reach this conclusion, and he sets out eleven grounds of appeal in his notices of appeal.

The grounds of appeal

16. Applying the legal principles identified above to the facts in these four cases, I turn now to address the grounds of appeal.

17. The first is that the court erred in law or exceeded its jurisdiction by ordering simultaneous trials before a single judge and jury, on the basis that this prejudiced the appellant’s constitutional and legal rights. This first ground is predicated on a false premise. The appellant has a statutory right to have his defamation cases tried by a jury. That does not mean that he has a right to have four libel actions heard separately before four different juries. The appellant does not enjoy any right to insist upon four separate trials. That being so, it will always be a matter for the High Court to direct the manner in which the cases are heard. The Court has a discretion to direct separate trials or concurrent trials as it deems appropriate, bearing in mind the jurisprudence governing simultaneous trials. The order made by the High Court preserves and protects the appellant’s right to a jury trial. The fact that the jury will be the same jury in each case does not amount to a denial of any legal right enjoyed by the plaintiff. Accordingly, the erroneous contention that it does cannot afford a basis to allow the appeal.

18. The second ground of appeal is to the effect that the order undermines the appellant’s entitlement to fair procedures and that it deprives him of a right to a jury trial in defamation cases. This is closely related to the first ground of appeal. As I have stated, the appellant does not have a right to have each of the four libel actions heard separately before four different juries. His right to a jury trial has been protected. The fact that the four trials are to be heard simultaneously does not detract from the fact that the cases will be tried by a judge and jury. There is no want of fair procedures in ordering concurrent trials in the circumstances, and the appellant has not made out any case that the resulting trials would not afford him fair procedures.

19. The third ground of appeal asserts that a separate jury is required in all separate concurrent defamation actions. He makes the point that each of his causes of action are separate causes of action. The submission is correct so far as it goes, but the argument that this means there must be four separate trials is misconceived. The appellant is being permitted to maintain his four separate actions. They are preserved. The fact that there is to be a simultaneous trial of the four causes of actions in no way amounts to the adoption of a “single publication rule”. This ground of appeal is without merit.

20. The fourth ground of appeal alleges that the court placed undue weight on judicial economy and procedural convenience over his constitutional right to have each claim heard individually under Article 34 of the Constitution and determined on its own merits, particularly regarding damages and readership impact. This ground of appeal is also based on the mistaken premise that simultaneous trials means that each claim will not be heard “individually”. The four cases will be heard by a judge and jury. No case will be omitted. There is no absolute right to have the four actions heard separately before four different juries, so there is no question of any such alleged right being denied. Furthermore, the jurisprudence makes clear that a court is entitled to ensure that its resources and the resources of parties to litigation are not inappropriately wasted by unnecessary duplication. This was a

decision which was well within the margin of appreciation for the High Court to make, and I see no error in Bolger J’s exercise of her discretion. The case advanced by the appellant on appeal falls very far short of the threshold which must be met before this Court will intervene.

21. The fifth ground of appeal is that the court failed to properly consider or give adequate weight to the real and substantial risk of jury confusion, conflation of facts and prejudicial cross-contamination of evidence arising from the simultaneous hearing of multiple and different defamation claims. In the first instance, it is clear from the decision of Bolger J that she did in fact consider the appellant’s arguments to this effect and she rejected them. At paras. 6 and 7 of her judgment, she held as follows: “6. Each of the four articles that the plaintiff claims defamed him were based on a report of District Court proceedings that was preprepared by the same court reporter. Each set of proceedings arises from what transpired in the District Court on the 16 September 2004 and are all very similar in terms of the facts, the legal issues, the witnesses who will be required and the basis for the plaintiff's claims for damages. Each of the defendants have pleaded the same legal defence of privilege in similar, albeit slightly differently worded, defences. Damages, if awarded, will take account of any damages against any of the other defendants.

7. This Court has jurisdiction to direct that the proceedings should be heard simultaneously. That jurisdiction ought to be exercised where to do so would result in a clear saving of court time and costs, reduce the risk of irreconcilable decisions of different judges and juries and avoid overlap of damages — unless simultaneous trials would cause an injustice to any one of the parties. It is obvious on the facts before this court that simultaneous trials will save time, cost and reduce relevant risk. The prospect of injustice to the plaintiff is far less obvious. The plaintiff highlighted the different readership of each newspaper. That is an issue well within the competence of a judge and jury to address and I see no irremediable risk of injustice to the plaintiff arising therefrom. The plaintiff contends that each article is different. Any differences are insufficiently significant to merit different treatment.”

22. Secondly, in my view, the High Court correctly weighed the issues in favour of or against simultaneous trials and that the balance clearly lay in favour of ordering concurrent trials. As I have already explained, all four proceedings arise from the same set of facts i.e. what transpired in the Dublin District Court on 16th September 2004. Each of the articles on which the appellant sues was based on a report prepared by Mr Tim Healy, court reporter. It follows that Mr Healy will be a crucially important witness called by the newspapers in all four actions. The pleadings in each of the four sets of proceedings are materially identical and the evidence to be proffered by the appellant and the newspapers in each of the four cases will be materially identical. The legal issues to be considered in each are materially identical. In particular, the issue of privilege involves the same considerations. The alleged loss sustained, and damages being sought in each of the four cases is identical. Part of the claimed damages is presented as a global figure applicable in respect of the four actions which must be apportioned between the various defendants. Against this, the appellant merely asserts that a jury would be confused but does not elaborate as to wherein the scope for confusion would arise. It would appear that the only possible confusion which could arise is in relation to the assessment of damage in respect of each publication, in the event that the appellant succeeds in his four actions. I agree entirely with the judge’s assessment that it would be perfectly possible to instruct the jury clearly in relation to any issues relevant to that assessment. This is amply borne out by the frequency with which juries try cases against multiple defendants, sometimes facing differing charges, arising out of a common set of facts, without any difficulty or confusion. Therefore, I would not allow the appeal in respect of this ground of appeal.

23. The sixth ground of appeal alleges that the court erred in concluding that the defamatory articles were materially similar and thereby justifying consolidation (sic), when in fact there are significant differences in headings, content, presentation, publication context and audience impact. In my judgment, this argument must be dismissed. In fact, all four actions have been brought by the appellant in respect of what is, essentially, the same libel. This is apparent from a comparison of the statements of claim. The appellant’s focus is on the Probation of Offenders Act 1907 having been applied. He says that this shows that he was not convicted of assault. He alleges that all four articles mean that he was convicted of assault. The crucial question of law at issue in all four cases is the same - whether, in respect each article, the defence of privilege set out in s. 18 of the Defamation Act 1961, applies. This question, in turn, depends on the key factual issue which is common to all four cases: namely, whether Judge Connellan stated, in the District Court on 16th September 2004, that he was convicting the appellant of assault even though he applied the Probation Act. The differences in the headlines, presentation and minor differences as to content do not alter these key issues as I have already held. I agree with the trial judge that the cases are materially similar. Even if there were greater dissimilarities than is the fact, nonetheless the appellant’s case falls far short of the threshold at which this Court will intervene in respect of a case management order of this kind.

24. The seventh ground of appeal contends that the High Court coerced the appellant into withdrawing his personal injury claims “under threat of losing my legal entitlement to a jury”. This ground of appeal is without merit. Section 1(1) of the Courts Act 1988 provides that a claim for damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty “shall not be tried with a jury”. The section is mandatory and clear. Subsection (2) provides that this applies in relation to an action in which damages are claimed both in respect of personal injuries and “in respect of another matter”. The trial judge pointed out to the appellant that if he wished to maintain his claim for damages for personal injuries, he was precluded from having a jury trial, because of the provisions of s.1(1) of the 1988 Act. His entire action would be heard by a judge sitting alone. On the other hand, if he chose to withdraw his claim for damages for personal injuries, his defamation trial could proceed before a judge and jury. Bolger J afforded him an opportunity to consider how he wished to proceed. After due consideration, he informed the court that he was withdrawing his claims to personal injuries in respect of each of the proceedings in order to preserve his entitlement to have the defamation cases tried by a jury. In my judgement, the trial judge proceeded correctly. She had no discretion in relation to the matter. There was no coercion of the appellant to withdraw his personal injury claim. He was required to elect between two options: a third (the trials proceeding before a jury while maintaining the claim to damages for personal injuries) was no longer available. The situation arose from the terms of the 1988 Act, and there was no question of there being any procedural unfairness.

25. It is factually incorrect to say that he was not on notice that the application would take place. Senior counsel for the respondents submitted to the High Court (Owens J) on 21st January 2025 that it was not possible to try the proceedings before a jury where the proceedings included a claim for damages for personal injuries because of the provisions of s. 1(1) of the 1988 Act. The issue was also raised in correspondence. The appellant was therefore alerted to this difficulty from January 2025 at the very latest. Furthermore, even if the respondents had not applied for a direction that the proceedings be heard by a judge sitting alone, the High Court would have been required to apply the provisions of s. 1(1) of the 1988 Act of its own motion. This ground of appeal is wholly unmeritorious.

26. In answer to a question by the Court, the appellant said that the claim for personal injury was very much subsidiary to his claim for defamation and that the court in effect should disapply s.1(1) in those circumstances. That submission flies in the face of the statute and is expressly precluded by subsection (2) of the 1988 Act. It is simply not open to the appellant to have a trial by a jury of proceedings which claim damages for personal injuries even though the lion’s portion of his claim is for damages for defamation and even though he claims that the publication of the offending articles caused the personal injuries in respect of which he seeks compensation. In the circumstances, there was no coercion by the trial judge, as he complains.

27. The actions of the High Court did not exemplify unfairness or any lack of judicial forbearance or any bias as alleged by the appellant. They did not amount to a departure from the Bangalore Principles of Judicial Conduct. There was no valid basis for the trial judge to recuse herself from hearing the motion and giving directions as to the trial of the cases and none has been identified.

28. The eighth ground of appeal is to the effect that for 17 years, the High Court, the Court of Appeal and the Supreme Court have treated the cases as four separate actions, and that therefore, it followed that the appellant was entitled, as a matter of law, to continue to treat all four cases as separate actions. Even if that were factually correct, it is legally irrelevant as to how the High Court should proceed to try the four cases. Certainly, it does not

- and could not - preclude the High Court from directing that the cases be heard concurrently. Furthermore, the decision of the High Court in fact is not inconsistent with the treatment of the proceedings to date, as the appellant contends. The previous hearings referred to were all joint hearings. Bolger J was of the view that the treatment of the four actions by the Supreme Court and the Court of Appeal supported her decision. At para. 7 of her judgment, she held: “My view [that the actions should be heard simultaneously] … is strengthened by the approaches already adopted by the Supreme Court and the Court of Appeal based on the significant level of similarity between the four cases. When the plaintiff's appeal against the decision of the High Court to dismiss the proceedings as bound to fail came before the Supreme Court, MacMenamin J. observed that the High Court orders were all similar. The court dealt with one set of proceedings in substantial form in a sixteen-page judgment (Tracey v Irish Times Limited and Others [2019] IESC 62), and the remaining three claims were dealt with in three short form three page judgments which MacMenamin J. said should be read in conjunction with the Irish Times decision that was handed down by the court on the same day. He observed that, whilst there were some differences between each of the proceedings, ‘in its essentials, the considerations and circumstances remain the same’ (at para. 4 Tracey v Independent Newspapers (Ireland) Limited and Others [2019] IESC 68). He made a similar observation at para. 4 of Tracey v Independent Newspapers (Ireland) Limited and Others [2019] IESC 69. In the Court of Appeal

decision overturning a separate decision of the High Court on the defendants' attempt to secure the trial of a preliminary issue, Donnelly J. gave a single judgment covering the appeals brought in all four proceedings in which she observed that the articles were all similar, though each had a different headline. Separate, but almost identical, orders were made in each appeal (Tracey v Independent Newspapers (Ireland) Limited [2023] IECA 1).” I completely agree with the observations of Bolger J. The conduct of the litigation to date supports the view that the courts have treated the four actions as very similar and does not afford a basis for the appellant’s assertion that the manner in which the courts have approach the litigation to date entitled him to four separate trials of these four cases.

29. The appellant was aggrieved that the applications for simultaneous trials of the four actions were brought very late in the day. The cases were listed before the judge dealing with the jury list on seven occasions between October 2023 and December 2024 without any intimation from the newspapers that they would make an application for concurrent trials. The application was clearly appropriate, and ideally ought to have been made once the defences were delivered in all four cases. Due to the earlier conduct of the litigation, and, it must be said, the extraordinary time in which the courts took to resolve two appeals brought by the appellant against orders of the High Court, the first application seeking to strike out the proceedings as bound to fail, and the second, directing the trial of a preliminary issue on the question of privilege, meant the defences were only delivered in October 2022. It is unsatisfactory that the applications were not advanced once the cases had been set down for trial, but the delay did not in fact prejudice the appellant in any way, and was an application which it was entirely appropriate to make and for the court to accede to in the interests of the proper administration of justice. The delay in bringing the application affords no basis for the appeal in the circumstances.

30. The tenth ground of appeal relates to the appellant’s request that he be given details of the witnesses to be called and evidence summaries in advance of the trial. These matters did not form part of the judgment or order of the High Court, and accordingly, are outside the remit of this appeal. Matters regarding the conduct of the hearing before the High Court should be addressed to the High Court.

31. The eleventh ground of appeal reiterates the first and second grounds of appeal. Under the heading ‘Equity’, the appellant argues that the four separate claims ought to be tried separately by individual juries “as the impact and damages in each case are not identical and cannot be fairly adjudicated in a consolidated format”. The proceedings have not been consolidated. They remain four separate proceedings. Invoking the heading “Equity” does not in any way detract from the existence of the High Court’s discretion. For the reasons already explained, the High Court was entitled to exercise that discretion to make the order under appeal. The arguments advanced on appeal fall well short of the threshold which must be met before this Court will intervene in a case management decision of this kind and referring to equity does not alter this assessment.

32. For these reasons, I would refuse the appeals in each of the four actions. I would hear the parties on the issue of the costs of the appeal and of the High Court.

33. Pilkington and McDonald JJ have authorised me to record their agreement with this judgment.