Supreme Court dismisses libel appeal where jury found no material injury to plaintiff's reputation despite proven advice on tax evasion.

THE SUPREME COURT

APPEAL NO. 124/01

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

BETWEEN/

BEVERLEY COOPER FLYNN

PLAINTIFF/APPELLANT

AND

RADIO TELEFIS EIREANN, CHARLIE BIRD AND JAMES HOWARD

DEFENDANTS/RESPONDENTS

Judgment delivered on the 28th day of April, 2004 by Denham J.

1. Beverley Cooper Flynn, the plaintiff/appellant, hereinafter referred to as the plaintiff, brought an action in the High Court for

damages for libel against Radio Telefis Eireann, Charlie Bird and James Howard. The proceedings arise out of a series of six broadcasts

transmitted by Radio Telefis Eireann, hereinafter referred to as RTE, between the 19th June and the 1st July, 1998. The plaintiff

pleaded that the words published by the defendants meant and were understood to mean that: (a) the plaintiff advised and induced

the third named defendant to evade his lawful obligation to pay tax by investing his money in a particular way; (b) the plaintiff

advised and encouraged the third named defendant to evade the payment of tax at 15% on undeclared income and assets; and (c)

the plaintiff advised and conspired with other named persons for the purpose of tax evasion. The trial in the High Court commenced

on 6th February, 2001 and lasted twenty eight days. The verdict was given by the jury on 3rd March, 2001.

2. The questions asked of the jury and their answers are as follows:

Question No. 1

Have the defendants proved that the plaintiff induced the third named defendant to evade his lawful obligation to pay tax by

not availing of the tax amnesty?

If the answer is “no” proceed to question 2.

If the answer is “yes” proceed no further.

Answer to Question No. 1

No.

Question No. 2

Have the defendants proved that the plaintiff advised or encouraged other persons – being those referred to in the evidence –

to evade tax?

If the answer is “no” proceed to question 4 to assess damages.

If the answer is “yes”, proceed to question 3.

Answer to Question No. 2

Yes.

Question No. 3

In view of the finding to question 2 has the plaintiff’s reputation suffered material injury by reason of the matters published

relating to the third named defendant?

Answer to Question No. 3

No.

Question No. 4

If the answer to question 1 and 2 is “no” assess damages.

(a) General damages _______

(b) Aggravation of such damages _______

Total _______

Question No. 5

If the answer to question 1 is “no” and the answer to questions 2 and 3 is “yes”, assess damages to the material injury to the

plaintiff’s reputation.

(a) General damages None

(b) Aggravation of such damages None

Total _______

3. On 4th April, 2001 the High Court heard argument on the issue of costs. On 5th April, 2001 the learned trial judge delivered

judgment ordering that each of the defendants recover from the plaintiff the costs of the action when taxed and ascertained. The

plaintiff has appealed against the order and judgment of the High Court. The notice of appeal recites many grounds of appeal based

on submitted errors of fact and law of the learned trial judge.

4. Keane C.J. has set out fully in his judgment the facts and issues of this appeal, which I gratefully adopt. However, one issue in

particular has concerned me and it is on that I write.

5. The significant ground of appeal which has concerned me is that relating to the law on majority voting of the jury. The plaintiff has

submitted that the learned trial judge ought to have informed the jury that a majority of at least nine is required to furnish an answer

to a question on the issue paper, and that, if they were considering more than one question, a particular group of nine must be

common to every majority.

6. The learned trial judge addressed the issue of majority voting in his charge given on 22nd March, 2001, Day 27. The transcript of

Day 27, at p. 120-121, provides:

“Finally, I want to deal with the way in which your vote, if it comes to that, will be dealt with. You decide the case either

unanimously or on a majority verdict. You may, ladies and gentlemen of the jury, lose three of your members and yet come up

with a majority verdict. So that if nine of you decide one way or the other, the other three’s vote is rejected and the decision

is come to on a majority.

Now I want to give you a very important direction in this regard. Assume for the moment that three of your members when you

are coming to decide on the liability issue should decide to vote against Ms. Cooper-Flynn, decide that she is not entitled to

win, now those three must stand back from the assessment of damages because that makes sense when you consider it, that if

those three people felt that she wasn’t entitled to win, if may well be that their vote would pass on into the assessment of

damages and they might well say something like this; ‘Well, she wasn’t entitled to damages in the first place anyway so I am

going to give her the miserable award as follows.’ Therefore, if you are deciding on a majority of 9, 10, 11, the people that you

lose at the early stage on the liability issue stand back and do not enter into any debate on the assessment of damages.”

7. On the next day, after a further charge by the learned trial judge, the jury posed a question. The transcript of 23rd March, 2001,

Day 28, at p. 51 sets out the exchanges:

“(JURY ENTER COURT – 3:59)

MR. JUSTICE MORRIS: Mr. Foreman, can I be of assistance?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: Thank you very much.

(NOTE HANDED TO THE COURT)

The note reads as follows:

‘To the Judge,

On question 1-3, we are seeking clarification regarding the definition of majority in this case.’

Is that correct?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: Am I understanding you correctly, you want to know the circumstances in which a majority decision can

be accepted?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: Very good. First of all, on question number 1, I do not think there could be any mystery about that. I

think the question is:

‘Have the defendants proved that the plaintiff induced the third named defendant to evade his lawful obligations to pay

tax by not availing of the tax amnesty?’

Now three of you ladies or gentlemen can disagree with the other nine. Taking an example, supposing that nine of you, and I am

only taking this as an example, you understand me, supposing nine of you felt that the defendants had not proved that to your

satisfaction but three of you were of a different opinion, in those circumstances the question is have the defendants proved

that the plaintiff induced the third named defendant (Mr. Howard) to evade his tax obligations and supposing, as I say, that

nine of you decided that they had not proved that, the answer would be ‘no’ to the first. Now you have lost three of your

members at this stage. Now you go on to question number 2. Those three ladies or gentlemen that you have lost can come

back into play when you are dealing with question number 2 because that is a completely different question, a completely

different question in the sense have they established that proof to your satisfaction in relation to the other four people. So

those can come back into play again. Now let us assume for the moment that you have decided that they have not proved

that, at that stage the plaintiff is succeeding on both of those cases. Now you are going on to assess damages. The damages

that you will assess under question 4 will be assessed by the nine that voted in favour of the plaintiff all the way down. Do you

understand?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: So as I explained to you yesterday afternoon, the reason for dropping the three that you have lost on

the way is because those three voting against the plaintiff on the liability issue might make up their mind, ‘Well, she doesn’t

deserve to get money anyway’ and for that reason give her very low damages. So that is why you will drop the three that we

have been talking about when it comes to assessing damages. Does that cover the point?

FOREMAN OF THE JURY: Yes.

MR. JUSTICE MORRIS: Very good, thank you very much.

MR. FEENEY: Was the question in relation to question 3 or question 4, my Lord?

MR. JUSTICE MORRIS: 1-3.

MR. FEENEY: Because I think your Lordship has dealt with 1, 2 and 4 but not 3. I am sorry.

MR. JUSTICE MORRIS: No, I am very grateful, Mr. Feeney. So I am going to deal with question number 3 now. That question is:

‘In view of the finding of question 2, has the plaintiff’s reputation suffered material injury by reason of the matters

published relating to the third named defendant?’

We are assuming for the moment with that question, that you have found that Ms. Cooper-Flynn did not induce Mr. Howard to

buy this personal portfolio by reason of saying; ‘Why would you give the Government 15%?’ We are assuming that you have

found in favour of the plaintiff on question number 1. Now we are assuming also that you have found against the plaintiff on

question number 2, that you are finding that she did induce the other four people to buy the portfolio for the purposes of

evading tax, what you are asked now to do is to decide; ‘Very good, what sort of a character does that leave us thinking she

had, having regard to the fact that she was going around the place selling these portfolios for the purpose of evading tax?’ And

you ask yourself the question; ‘Did the publication relating to Mr. Howard which we have found to be defective or false, did that

damage her reputation in any way?’ The question that you are asked in number 3 is:

‘In view of the finding on question 2, has the plaintiff’s reputation been materially injured by reason of the matters

published in relation to the third named defendant?’

Has her reputation been materially injured by reason of what they said about her in relation to Mr. Howard? I cannot help you

on that. That is something that you are going to have to make up your mind for yourself and I will be trespassing on your job if

I try to carry the matter any further, but that is the job that you have to do. If you find that there has been no material

interference with her reputation by the publishing of the matters relating to Mr. Howard, then you will find that and it is a

matter for you whether or not you will award her damages. If on the other hand you find that even though she was selling this

product to the four other people by inducing them to evade tax and so forth, but at the same time what they said about her in

relation to Mr. Howard did materially damage her character, then you will award her whatever damages you consider to be

appropriate. Very good, that is as far as I can carry it with you. If I go any further than that, I will be trespassing on your job.

FOREMAN OF THE JURY: If it is a majority, can twelve of us decide question 3?

MR. JUSTICE MORRIS: Can the twelve of you decide it? Yes.

MR. FEENEY: I think it might be better if we mentioned it in the absence of the jury as to if there was, say, a 10:2 just as an

example, on question 2, it might be desirable to hear the parties in relation to, if I am assuming it was a 10:2 in question 2, who

are the parties that would participate in question 3.

MR. JUSTICE MORRIS: Mr. Foreman, ladies and gentlemen, accept my answer for the moment unless we send for you. Thank

you.

(JURY LEAVE COURT – 4:08)”

Having addressed the issue of a majority verdict on questions number 1, 2 and 4, the learned trial judge and counsel then returned to

the issue of a majority verdict on question number 3. The transcript provides:

“MR. JUSTICE MORRIS: Mr. Feeney, before I hear you, and I am grateful for any guidance that any of the Bar have to offer, my

thinking is this. The authorities as I know them have established that the only reason why you can’t have someone who voted

against the liability voting on the issue of damages would be that that person might be, as I have said to the jury, prejudiced

or, in other words, reluctant to give any worthwhile damages in view of his views on liability. I do not see any reason why he

should not embark on a consideration of number 3. Does anybody disagree with that?

MR. FEENEY: I think there is a certain inherent logic to the extent that you are not asking them to assess damages, my Lord.

MR. JUSTICE MORRIS: That is encouraging indeed. Thank you, Mr. Feeney, I am so grateful.

MR. FEENEY: I do not want to in any way …

MR. JUSTICE MORRIS: Very well. Unless anybody has any problem with that ruling, I will leave it stand.

MR. FEENEY: Is that there can be an 9:3 or a 10:2 majority?

MR. JUSTICE MORRIS: On questions 1 and 2 and yet have the twelve.

MR. FEENEY: Yes.

MR. MOHAN: Yes, I agree to leave it at that.

MR. JUSTICE MORRIS: Thank you very much.”

Thus the issue of the law on majority verdicts in relation to the first three questions was addressed by the learned trial judge.

Counsel were alert to the issue. This was not a case of inadvertence. The issue having been dealt with by the learned trial judge

counsel for the plaintiff and the first and second defendants agreed to leave the issue stand as stated by the learned trial judge.

These are all relevant factors on this appeal.

8. The law on majority voting of a jury in a civil case is stated in s. 95 of the Courts of Justice Act, 1924, which provides:

“In every trial whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of

twelve members and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the

verdict. The judge shall so inform the jury and the verdict of such nine members or upwards shall be taken and recorded as the

verdict of the jury, without disclosure of the dissentients, if any such there be.”

Thus, in a civil case (as is the one before the court on this appeal), before a judge and jury, the jury shall consist of twelve members

and a majority of at least nine of those twelve shall be necessary to achieve a verdict. The statute specifically provides that the trial

judge shall so inform the jury. Therefore, a verdict of nine or upwards shall be taken and recorded as the verdict of the jury. The

section also provides that the recording of such a majority verdict shall be without disclosures of dissentients, if any.

9. Section 95 of the Courts of Justice Act, 1924 was considered by this court in Arnott v. O’Keefe [1977] I.R. 1. As it is an important

case on the issue of majority jury verdicts I consider it in some detail. Arnott arose out of a road traffic accident and the issues were

relatively simple. The plaintiff was injured and sustained loss as a result of a collision between the motor cycle which he was riding

and a motor car driven by the wife of the defendant. The plaintiff claimed damages from the defendant in the High Court for his

injuries and loss which he claimed were caused by the negligence of the driver of the car. At the trial counsel for the plaintiff

submitted to the trial judge that there was no evidence of the plaintiff having been negligent and that any question left to the jury on

the issue of negligence should be framed so as to specify the particular act or omission which the jury were being invited to condemn

as negligence. Counsel also asked the trial judge to explain the statutory requirements as to majority verdicts. However, the trial

judge did not charge the jury in relation to the majority required to answer each question. The jury found that each driver had been

negligent and appointed 60% of fault to the defendant and 40% to the plaintiff. Damages were assessed by the jury answering five

questions on the issue paper, a judgment for 60% of the total damages was awarded to the plaintiff. The plaintiff appealed. This

court (Walsh, Kenny and Parke J.J.) allowed the appeal holding that the finding of the jury that the plaintiff was negligent was not

supported by the evidence which established that the defendant’s driver had created an emergency and that the plaintiff in reacting

to the emergency had failed to escape to safety through an alleged four foot gap. It was held that the provisions of s. 95 of the Act

of 1924 imposes a duty on the trial judge to inform the jury that a majority of at least nine members is required to furnish an answer

to a question appearing on the issue paper. The issue was addressed by Walsh J. who stated, at p. 4:

“In the present case the trial judge’s instructions to the jury on the question of majority verdict, which by virtue of the statute

he is obliged to give them, are contained in the following extract from his charge to the jury:-

‘You may all be unanimous in the answers you give to each question but if you cannot get all of your colleagues

unanimous, you must get at least nine of the one opinion before you can write down the answer to any question. …’

The learned trial judge made no further reference in his charge to this question. Nine separate issues were left to the jury to be

decided. Five of these related to the ingredients of damages, two to the questions of negligence, and two to the questions of

fault. The jury answered each of the questions. These answers were the component parts of the verdict of the jury.

…

In my opinion, the judge’s directions to the jury on this question did not fulfil the requirements of s. 95 of the Act of 1924. The

section expressly requires the judge to inform the jury that a vote of nine of the members shall be necessary and sufficient to

determine the verdict. Nobody save the jury knows whether in the present case there was a lack of unanimity in respect of any

matter; nevertheless, one must approach this question on the basis that there may have been.

Before a jury discharges its function in relation to the verdict it must be correctly instructed in accordance with the statute.

If the sole question before a jury was the simple and single one of whether the jury finds for the plaintiff or finds for the

defendant, then a simple statement to the effect that at least nine of the members of the jury must be of the one opinion

before the question can be answered would be sufficient. That was not this case and, nowadays, it would rarely, if ever, be the

case in view of the practice insisted upon by this Court that the specific and separate issues falling for decision must be left to

the jury.

The learned trial judge was correct in telling the jury that a disagreement would result if, upon any question, a majority of nine

could not be obtained. However, it appears to have been his intention, as one may adduce from the words used to the jury as

corroborated by his reply to the requisition on the point raised by counsel for the plaintiff, that any nine members of the jury

was sufficient to constitute the necessary majority for the purpose of answering any question. If this were correct it could lead

to some very curious results. For example, a particular nine might be of the view that a defendant was guilty of negligence but

only six of that nine might be of the opinion that the plaintiff was guilty of negligence. If that six could be reinforced by the

three who were in the minority on the first question then the questions would be decided by two different groups. If the first

nine had prevailed, the verdict would have been one in favour of the plaintiff with no finding of contributory negligence against

him. If the second group prevailed the result would be different. But what is the result when both the separate groups are

operating simultaneously?

In the days prior to 1961 when contributory negligence was an absolute defence, the plaintiff would have lost his action if the

second group prevailed whereas the result would have been a finding in favour of the plaintiff on the negligence issue and a

disagreement on the contributory negligence issue if the view of the first group prevailed. When one translates such a situation

into a case where there are several questions the possibility of such cross voting could give rise to such a bewildering variety of

combinations and permutations that it would be utterly impossible to determine what was, in the words of the statute, ‘the

verdict of such nine members.’ It is ‘the verdict of such nine members’ which shall be sufficient to determine the verdict.

It appears to me that the statute clearly intended that when the jury was operating on a majority vote of nine of the twelve

members the verdict should be that of a particular nine and that when the verdict depended upon the answers to several

components of the verdict the answers in all cases must be those of the same nine.

The Act did not preclude other members of the jury joining in the verdict, that is to say, adding their voice in support of the

answers agreed upon by the particular nine on any question of which there was not unanimity. The correct direction to a jury

on the matter which s. 95 of the Act of 1924 requires the trial judge to explain to them is one which informs them that, in the

absence of unanimity, the verdict should be that of at least nine members of the jury and that, when there are several

questions to be answered, if there is not unanimity on the way each of them is to be answered then there must be a majority

of at least nine and that the same nine must concur in the answer to be given to each of the questions even if the number

agreeing upon the answer is greater than nine. In this way, and in this way only, can a verdict of a jury which is dependent

upon the answers to several questions be said to be ‘a verdict of such nine members or upwards.’

In my view the failure of the trial judge to correctly inform the jury in accordance with the requirements of s. 95 of the Act of

1924 resulted in a mistrial of the action.”

Kenny J. held at p. 19:-

“One of the objections made by counsel for the plaintiff to the charge of the trial judge related to the way in which the judge

dealt with the right of a jury to bring in a majority verdict. …

The verdict of the jury does not consist of their answer to any specific question. It is their answers to all the questions. This is

made clear by the words ‘of such nine members or upwards shall be taken and recorded as the verdict of the jury.’ It is

essential that the judge should inform the jury that before they can bring in a majority verdict there must be nine members of

them who agree with all the answers to the questions which have been submitted to them. It is not sufficient to justify a

majority verdict that there are nine members of the jury in favour of each answer on any specific question. There must be nine

who agree with all the answers; if there is not such a majority, they should be told that they should disagree.”

Parke J. held, at p. 23:-

“The second point which arises in the case does not seem to have been a subject of previous judicial authority. On the

completion of the judge’s charge, counsel for the plaintiff objected that this did not include a proper direction as to the majority

necessary for the proper answering of the questions. The trial judge had informed the jury that the required majority must be

not less than nine but he did not tell them that, in answering each of the questions, the same nine persons must be included in

this majority. The learned trial judge refused to re-direct the jury on this ground on the basis that he did not accept that any

such principle existed. In my view the correct construction of the provisions of s. 95 of the Courts of Justice Act, 1924, clearly

requires that the same nine members of the jury must be included in the majority answering each question and that it is the

duty of the judge so to direct the jury. The ‘verdict’ of a jury is the sum total or result of any specific questions which may be

asked of them. In order to constitute a ‘verdict’ there must be at least nine members of the jury who agree with the answers to

all the questions. Accordingly, I am satisfied that there was a misdirection to the jury in the present case.”

10. Unfortunately Arnott was not brought to the attention of the learned High Court judge. No party to this action requested the

court to vary or overrule Arnott.

11. The issues in Arnott were simple in comparison to this case. There was only one defendant, and there were fewer factual and

legal issues. The principle as to majority verdicts was identified in those circumstances. This may be seen by a consideration of the

analysis by the learned judges.

12. There was a single initial issue before the jury, negligence. Thus on a single issue, or components of a single issue, the same nine

persons should make a decision. If the questions were set so that they were components of a single issue then such questions should

be decided by the same majority as decided the preceding question. But questions need not necessarily be so formulated. Questions

may not be components of a whole, nor may they be dependent on one another, especially where there are multiple defendants.

13. Arnott does state that the same nine jurors must decide components of an issue, and if issues are co-dependent then the same

nine must decide such particular issue leading to a verdict. Arnott was a case with relatively simple issues at stake. It may be

contrasted to this case with its multiple parties and complex issues. I am satisfied that Arnott does not mean that the same nine

jurors must decide all issues in a case where there are separate issues which are not dependent upon each other nor which are

components of a single issue and which relate to separate defendants. Unlike the hypothetical case described by Walsh J. in Arnott,

there are multiple separate issues in this case which are not all co-dependent or components of a single determination and which

relate to different defendants.

14. The complexity of this case, and the diverse separate issues, relating to different defendants, may be seen in the questions.

Indeed, the questions for the jury to determine were consolidated and perhaps did not themselves adequately reflect the complexity

of the case. The difficulty of having multiple issues and multiple defendants is apparent in the questions. However, having considered

the case carefully it illustrates to me the rational decision-making of a sophisticated jury on complex issues.

15. While considering the words of s. 95 of the Courts of Justice Act, 1924 the requirement that the existence of dissentients (if any)

should not be disclosed is noteworthy. It may be that this aspect of the statutory law was not brought appropriately to the attention

of all involved in this case. It is an important aspect of a verdict upon which the Oireachtas has stated the law clearly.

16. However, whether or not there were majority verdicts, the law on majority verdicts is provided for in s. 95 of the Courts of

Justice Act, 1924 and is applicable. In this case no party sought to argue that the learned trial judge was entirely correct in his

direction to the jury on the issue of majority verdicts. However, it is also true that the parties accepted his ruling and did not seek

any further statement or clarification on the matter at a time when all or any could have so sought.

17. The circumstances in which the issue on the law on majority voting by the jury arose and was considered is relevant. The issue of

the law on majority voting was expressly addressed by the learned trial judge in the High Court. In his original charge the learned trial

judge instructed the jury in a manner which, while not totally comprehensive, would not be such as to ground an application for a

mistrial. In reply to the question posed by the jury the learned trial judge dealt appropriately with questions number one and two.

They related to different persons, they were different questions, and the same majority would not be required to answer as a majority

to questions number one and two. Then, as to question number four, he said “the damages that you will assess under question 4 will

be assessed by the nine that voted in favour of the plaintiff all the way down.” This question did not infact arise for decision because

of the ultimate finding of the jury to question number three.

The judge’s charge as to the answers to the questions may be viewed as somewhat intricate. However, to some extent that is

because the questions themselves were somewhat imperfect.

Counsel for the first and second named defendants raised the possibility of a majority on question two and the query as to who might

then participate in answering question three. Counsel indicated that it might be better mentioned in the absence of the jury. The

learned trial judge told the jury to accept his answer unless he sent for them. They were never sent for on this issue. This then is at

the kernel of the matter and the appeal. In the absence of the jury the learned trial judge referred to the logic of why a juror who

had found against a plaintiff on liability should not be part of the further vote. He asked counsel:

“I do not see any reason why he should not embark on a consideration of number 3. Does anyone disagree with that?”

Counsel on behalf of the first and second named defendants said that there was a certain inherent logic. Counsel for the plaintiff

agreed to leave the matter stand. No other counsel raised any query on the issue.

18. The run of the trial is also an important aspect. In an appeal of a criminal case the court pays particular regard to the run of a

trial in a criminal case. As Finlay C.J. said in The People (D.P.P.) v. Ryan (7/7/1986) 3 Frewen 107, at p. 112:

“In the ordinary way, this Court pays particular regard to the run of a trial in a criminal case, and therefore, where there is a

complaint of a deficiency or error in the charge of the trial judge, looks usually to the question as to whether counsel for the

accused has at the hearing seen the omission or fault as bearing on the justice of the case and made a requisition for its

correction.”

This obiter dicta is referring us to the core – the justice of the case in a criminal trial. Similarly, in an appeal in a civil case regard

should be given to the run of the trial and the decisions of the parties and their counsel. While such circumstances may not be

determinative of issues such as jurisdiction, they may be relevant factors in the exercise of discretion. In an action such as this,

where the issues are complex and have been addressed specifically by the trial judge and accepted by counsel for the parties, these

are relevant factors in considering a submission that there should be a new trial.

19. It is vital also to consider the role of the jury, for the role of the jury is critical. The jury makes the decisions on fact, including

the kernel issue as to whether the plaintiff’s reputation suffered material injury. Appellate courts have been slow to interfere with

decisions of juries. This is so especially in defamation actions where the role of the jury is pivotal. The unique position of the jury in

actions such as this was pointed out by Walsh J. in Quigley v. Creation Ltd. [1971] I.R. 269 at p. 272:

“Basically, the question of libel or no libel is a matter of opinion and opinions may vary reasonably within very wide limits. When

a jury has found that there has been a libel, this Court would be more slow to set aside such a verdict than in other types of

actions and it would only do so if it was of opinion that the conclusion reached by the jury was one to which reasonable men

could not or ought not have come.”

As a consequence of the pivotal role of the jury in a defamation action this Court is slow to set aside such a decision. In this case

twelve members of the community, the jury, gave over a month of their time to listen to the evidence and give a considered verdict

on the issues of the case, including as to whether the plaintiff’s reputation suffered materially in the circumstances. I would be

reluctant to intervene with their decision unless required by law or the Constitution.

20. The discretion of a court in defamation actions was addressed in Grobbelaar v. News Group Newspaper Ltd. [2002] 1 W.L.R.

3024, a case of the House of Lords in the United Kingdom, which I find similar to Irish jurisprudence. In Grobbelaar the plaintiff was a

well known professional footballer who from 1981 was the goalkeeper for a prominent English team. In 1994 the defendant newspaper

was approached by a person who claimed that the plaintiff had acted corruptly. Arrangements were made for recordings of a

conversation with the plaintiff. In those meetings the person, posing as a principal for persons involved in betting on the results of

football games, put proposals to the plaintiff that he be paid for attempting to influence the results of specific games by deliberately

letting in goals. The plaintiff was recorded responding positively to the proposed conspiracy and accepting a cash payment. The jury

found for the plaintiff and made an award of £85,000 damages. On the defendant’s appeal the Court of Appeal held that the award of

£85,000 was consistent with the jury having found not only that the plaintiff had not engaged in any actual match fixing but also that

he had not been party to any corrupt agreement and that such a finding was in the face of the audio and video evidence supporting

the corrupt agreement allegations, perverse. It accordingly quashed the jury’s verdict. On the plaintiff’s appeal to the House of Lords

it was held, allowing the appeal, that an appellate court should not find the verdict of a jury on liability to be perverse unless there

was no rational explanation for it; that, although any finding by the jury that the plaintiff had not entered into a corrupt conspiracy

would have been, on the evidence before it, plainly wrong, the jury had been entitled to find that the sting of the articles lay not in

the allegation of conspiracy but in that of match fixing on the field of play and the verdict in favour of the plaintiff was consistent

with the jury having come to that conclusion; and that, accordingly, since it had been open to the jury to find that the sting of the

libel lay in the allegation of match fixing and it had been entitled on the evidence to find it had not been justified, the Court of Appeal

ought not to have overturned the jury’s verdict on liability. But that, although the restoration of the jury’s verdict entitled the plaintiff

to judgment, there was no justification for a court to award substantial damages to a person shown to have no reputation deserving

of legal protection, and the plaintiff’s conduct as demonstrated in the evidence before the jury had destroyed the value of his

reputation; and that, accordingly, the jury had erred in making an award of damages of £85,000. As there was power in the appellate

committee’s inherent jurisdiction to substitute the order which it concluded the Court of Appeal should have made, an award of £1

nominal damages would be substituted.

Lord Bingham of Cornhill said at p. 3036:

“The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to

those who have, or deserve to have, no reputation deserving of legal protection. Until 9 November 1994 when the newspaper

published its first articles about him, the appellant’s public reputation was unblemished. But he had in fact acted in a way in

which no decent or honest footballer would act and in a way which could, if not exposed and stamped on, undermine the

integrity of a game which earns the loyalty and support of millions. Even if the newspaper had published no more than what, on

my interpretation of the jury’s verdict, it was entitled to have published, the appellant would have been shown to have acted in

a way which any right thinking person would unequivocally condemn. It would be an affront to justice if a court of law were to

award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations.”

I would adopt the same approach to the circumstances of this case. In this case the sting of the defamation alleged was the issue as

to whether the plaintiff had advised persons to evade tax obligations.

21. In general, an appellate court will only interfere with a decision by a jury in defamation proceedings where there are strong

grounds so to do. In the 10th Edition of Gatley on Libel and Slander at paragraph 36.19 at p. 1065 it is stated:

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

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

be perverse unless there is no rational explanation for it.”

I would adopt this as a correct statement of the law and apply it to the circumstances of this case.

22. The burden on the plaintiff, when seeking an order for a new trial, is significant. The Rules of the Superior Courts, O. 58 r. 7(2)

provide:

“(2) A new trial shall not be granted on the ground of mis-direction or of the improper admission or rejection of evidence, or

because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to them,

unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial; and

if it appear to such Court that such wrong or miscarriage affects part only of the matter in controversy, or some or one only of

the parties, the Supreme Court may give final judgment as to part thereof, or as to some or one only of the parties, and may

direct a new trial as to the other part only, or as to the other party or parties.”

23. Thus at issue in this case is whether there has been a substantial wrong, or, a miscarriage of justice. In dismissing an appeal

against a jury decision of defamation, in Lim v. Lawless and Ors., 19th June, 1991, the Court of Appeal (Civil Division) of England and

Wales, Beldam L.J. (with whom Leggat L.J. and Fox L.J. agreed), held:

“After reviewing the evidence to which we were referred and the judge’s summing-up, I am unable to say that there was in this

case a clear miscarriage of justice. On the contrary, I was satisfied that there was evidence before the jury from which they

must have held not only that the pith of any defamatory statement in the article was fully made out but that, even if any of

the sting remained, it would not significantly have diminished in the minds of right thinking members of the community the

reputation of a professional nurse who had been clearly shown to have disregarded interests of her patients which should have

been clearly shown to have disregarded interests of her patients which should have been her overriding concern. The effect of

s. 5 of the Defamation Act is, I believe, to do no more than make clear the principle stated by Lord Shaw of Dunfermline in

Sutherland v. Stopes [1925] A.C. 47 at page 81 that:

‘… in libel cases a view meticulously taken … of the words of a libel is not sought for, but the opinion of the jury is

accepted as conclusive and final on justification if it applies truly to the substantial matter, criminal, nefarious or

contemptible, which the libel as a whole did affirm.’

I would dismiss the appeal.”

I find this persuasive authority as to the position of the opinion of the jury and the essence of the case.

Therefore it may be seen that the pivotal position of the jury, at the heart of a decision on defamation, is underpinned by the Rules of

Court, the nature of the appeal and the underlying common law.

24. Question No. 3 addressed the issue of the plaintiff’s reputation. In this consolidated question reference is made to her reputation

in the context of the jury’s answer as to her advices to other persons and the matters published relating to the third named

defendant. The conduct of the plaintiff in relation to her advices to the other persons and the third named defendant were of the

same nature. Consequently, accepting as I do that the evidence was properly before the jury as to her reputation, it was open to the

jury to reach the conclusion it did on her reputation. The plaintiff chose to sue the defendants in one action and cannot now argue

that the jury could find that she had two contradictory reputations, which would be a consequence of her submission. In a single

case, as here, with multiple defendants and a wider frame of issues, a verdict cannot be that she has multiple (contradictory)

reputations.

25. On the submissions made on behalf of the plaintiff as to the law on majority verdicts, in view of the factors in the case, the

nature of the case (a defamation case), the pivotal role of the jury, the charge and recharge given by the learned trial judge, the

agreement of counsel to leave it at that, the complexity of the case with multiple parties, the consolidated nature of the questions, in

all the circumstances, where it has not been established that there has been a substantial wrong or a miscarriage of justice, I would

not interfere with the decision of the jury given after a trial of 28 days and I would not direct a new trial.

26. As to the other grounds of appeal raised on behalf of the plaintiff, I agree with the judgment of Keane C.J.

27. Thus, for the reasons given, I would dismiss the appeal on all the grounds of appeal.