Appeal dismissed as no substantial miscarriage of justice occurred regarding jury majority verdict directions.

THE SUPREME COURT

No. 124/01

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

BETWEEN:

BEVERLY COOPER-FLYNN

PLAINTIFF/APPELLANT

and

RADIO TELEFÍS EIREANN, CHARLIE BIRD AND JAMES HOWARD

DEFENDANTS/RESPONDENTS

Judgment delivered the 28th day of April 2004 by McGuinness J.

I have had the benefit of reading the judgment of the Chief Justice and I agree with him that this appeal should be dismissed. The

Chief Justice has in his judgment fully set out both the factual background to the case and the course of the proceedings in the court

below; I have nothing useful to add to his analysis in this regard.

I would like, however, to add a few comments of my own on the final ground of appeal considered by the Chief Justice, that is, the

directions given by the learned trial judge as to a majority verdict.

This ground of appeal was set out in the notice of appeal as follows:

“The learned trial judge erred in law and in fact in that he:

(a) failed properly or adequately to direct the jury on the issue of majority voting having regard to the questions put to

it.

(b) Failed to record whether there was in fact a majority vote by the jury and in respect of which questions there was

such majority vote.

(c) Failed to indicate to the parties in clear terms the nature of the difficulties faced by the jury when they sought his

guidance on the principles applicable to majority voting.

(d) Failed adequately to advise the jury on the principles applicable to majority voting when it sought his guidance.

(e) Erred in law and in fact in directing the jury that where there was a majority of them in favour of the plaintiff in

question 1 that all twelve members of the jury should go on to consider question 3 when it should only be those who

found in the plaintiff’s favour in question 1.”

In submissions to this court counsel for the plaintiff relied in the main on sub-paragraphs (a), (d) and (e) above. It should perhaps be

noted that sub-paragraph (e) in this ground of appeal refers to the relationship between possible majorities of the jury in questions 1

and 3, but makes no reference to question 2. It must also be borne in mind that the matter of the learned trial judge’s directions to

the jury on majority verdicts was not raised by way of requisition by counsel for the plaintiff at the trial. In fact the only queries in

regard to this aspect of the trial judge’s directions were raised by counsel for the respondent. Counsel for the plaintiff specifically

accepted the directions and rulings of the trial judge.

The questions put to the jury at the trial were as follows:

“(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.

(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.

(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?

(4) If the answer to questions 1 and 2 is ‘NO’ assess damages.

(a) General Damages______

(b) Aggravation of such damages_______

(c) Total____________

(5) If the answer to question 1 is’ NO’ and to questions 2 and 3 is ‘YES’ assess damages to the material injury to the plaintiff’s

reputation.

(a) general damages_________

(b) aggravation of such damages___________

(c) Total____________”

The jury answered question 1 “NO”, question 2, “YES” and question 3 “NO”. While on these answers it would appear unnecessary to

proceed to question 5, after some discussion with the trial judge the jury answered question 5 by awarding no general or aggravated

damages to the plaintiff.

The matter of a possible majority verdict was dealt with during the learned trial judge’s trial to the jury. It also arose subsequently

both in exchanges between counsel and the judge and in answer to a question put to the judge by the jury. In the course of his

charge to the jury on day 27 of the trial (page 120) of the transcript the learned judge said:-

“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 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 was not entitled to win, it may well be that their vote would pass on into the assessment of

damages and that they might well say something like this; ‘well, she was not 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 nine, ten, eleven, the

people that you loose at the early stage on the liability issue stand back and do not enter into any debate on the assessment

of damages.”

At the end of that day in the absence of the jury, counsel for the first and second named defendants, Mr Feeney, raised what he

described as a housekeeping matter as follows:

“Two housekeeping matters, My Lord. I would have thought that if the nine jurors answered the first question ‘NO’ it is the same

nine jurors who should deal with the second question as well and I did not think that was entirely clear from your lordship’s direction.

I think it is correct if you answer the first question ‘YES’, if nine jurors answer the first question ‘NO’, I would have thought it makes

logical sense that the same nine should proceed to deal with question 2. It would be against my interest to say this, but I think that

is the logic which has been followed in previous, giving that the three who have answered the first question have effectively

identified that the plaintiff should lose the case.”

In his reply to requisitions by counsel at the end of that day the learned trial judge referred to the point made by Mr Feeney as

follows:

“Now in relation to the first point, described by Mr Feeney as a housekeeping point that is to say that it would be open to the jury to

give no damages if there was a finding of ‘YES’; to question no. 2, I was of the impression that I had made that clear but less there

be any doubt about that, I will recharge the jury on that.”

On the following morning, again in the absence of the jury, Mr Feeney returned to this subject. The following exchange took place.

(Day 28 page 3 of transcript):

“Mr Feeney:

I asked for the jury to be kept out so I would be able to address you briefly on two matters in the absence of the jury. The

first is to say I believe I was wrong in something that I indicated to you yesterday having had the opportunity to think about

it, what I described as a housekeeping point. If Your Lordship looks at the questions, I suggested that if some people answered

the first question that they then might be disqualified from answering the second, I think in principle that just cannot be right.

Mr Justice Morris:

I agree with you, Mr Feeney.

Mr Feeney:

The infirmity that one is aiming to protect against is damage as being dealt with by people. What I think is that all 12 must be

allowed answer questions 1 and 2 and when it comes to damages, all nine must be in agreement in relation to questions 1 and

2. Mr Justice Morris:

‘Yes”.

Mr Feeney:

I think that is the simple proposition. In other words, there is no reason in principle why if somebody has dealt with the factual

determination in one, because the second one is a separate and stand alone one, that they should not as a jury be allowed to

deal with it.

Mr Justice Morris:

Yes, and subject to anything Mr Cooney says I think that is correct.”

Further submissions by way of requisitions were made by both Mr Feeney and by Mr O’Higgins, counsel for the third named defendant.

These were replied to by senior counsel for the plaintiff, Mr Mohan. At page 30 of day 28 Mr Mohan dealt with the majority question

as follows:

“The only other point I want to mention to Your Lordship is that I accept what Mr Feeney does say in relation to the 9:3 point,

the housekeeping point that he raised at the outset. I have no difficulty in that regard and I would accept his submission in

that regard.”

No further reference was made to this question before the jury retired to consider their verdict. During the course of the afternoon

however the jury returned to the court to put a question to the judge. This was done by the foreman of the jury handing a note to

the court which read as follows:

“To the judge,

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

The judge then asked the foreman of the jury whether he understood correctly that the jury wished to know the circumstances in

which a majority decision could be accepted. The foreman replied in the affirmative.

The learned judge answered as follows:

“First of all on question no. 1, I do not think there could be any mystery about that. I think the question is:

‘Had 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, nine of you felt that the defendants had not proved 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 no. 2. Those three ladies or gentlemen that you have lost can come back

into play when you are dealing with question no. 2 because that is a completely different question, a completely different

question in the sense have they established that poof 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 does not deserve to get

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

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

Foreman of the jury:

Yes.”

At that point Mr Feeney intervened to ask whether the jury’s question was in relation to question 3 or to question 4. He suggested

that the judge had dealt with questions 1, 2 and 4 but not with question 3. The judge then went on to deal with question 3:

“So I am going to deal with question no. 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 no. 1. Now we are assuming also that you have found against the plaintiff on question no. 2,

that you are finding that you 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 purposes 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 judge then repeated the wording of question 3 and went on to say:

“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 their 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.”

The following exchange then took place:

“Mr Feeney:

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 that 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.”

The jury then left the court. The exchange continued as follows:

“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 cannot 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 no. 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 a 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.”

In his submissions to this court counsel for the plaintiff relied in the main on section 95 of the Courts of Justice Act 1924, as

interpreted by this court in the case of Arnott v O’Keeffe [1977] I.R.1. This case does not seem to have been cited in the court

below. It is a case concerning personal injuries arising out of a road traffic accident in which questions of the degrees of negligence

of both the plaintiff and the defendant arose. Section 95 of the Courts of Justice Act 1924 provides as follows:

“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 the 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 dissentients, if any such there be.”

The wording of the section in itself does not deal specifically with the position that might arise where the jury has to deal with more

than one question in order to “determine” the verdict. This question was, however, authoritatively dealt with in the Arnott v O’Keeffe

case in which this court held that the provisions of section 95 of the Act of 1924 imposed a duty on the trial judge to inform the jury

that a majority of at least nine members was required to furnish an answer to a question appearing on the issue paper and that,

where several questions appeared, a particular group of nine members must be common to every majority. Three judgments were

delivered by Walsh J., Kenny J and Parke J. respectively.

Walsh J. analysed some of the problems which might arise if different majorities were to decide the related questions of the respective

degrees of negligence of the plaintiff and the defendant in that case. Walsh J. stated (at page 5):-

“If the sole question before a jury was a 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 issue 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 might deduce 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 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 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 on which there was not unanimity. The correct direction to a jury on the matter which section 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 though 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 dependant upon the answers to several questions

be said to be ‘the verdict of such nine members or upwards’”.

While Kenny J. and Parke J. did not deal with the question in such detail they reached the same conclusion.

Kenny J. in his judgment (at page 19 of the report) stated:

“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’. 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 had been submitted to them. It is not sufficient to justify majority verdicts 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. (at page 23) dealt with the issue as follows:

“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 not include a proper direction as to the majority

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

not less than nine, that 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 redirect 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 section 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.”

I have set out the various directions concerning majority verdicts given by the learned trial judge to the jury at some length, since it

is necessary to place them in the context of the law set out in section 95 of the 1924 Act as interpreted by this court in the Arnott

case in order to decide whether some substantial wrong or miscarriage of justice has occurred in this trial. It is also necessary, in my

view, to consider both the judge’s directions in this case and the dicta of the learned judges in the Arnott case in the context of the

facts of the respective cases. In particular the nature of the specific questions put to the juries in the respective cases must form

part of this consideration.

In Arnott v O’Keeffe the issues to be tried arose from a single incident – a road traffic accident. The jury was asked to decide firstly

whether the defendant was negligent and secondly whether the plaintiff was negligent. It was then asked to apportion the degrees of

fault of the defendant and of the plaintiff. Finally it was asked to assess damages. The first two of these two questions were in a

sense two sides of the same coin. The jury was weighing up the evidence of the cause of a single accident – did the defendant cause

the accident or did the plaintiff cause it, or should the responsibility be shared between them and in what proportion? It is in this

scenario that the careful analysis by Walsh J. of the “very curious results” which could arise if the first and second questions were to

be decided by two separate groups is established. When “both the separate groups are operating simultaneously” they could reach

contradictory conclusions about the single event which was in issue. The danger of contradictory verdicts is again illustrated by

Walsh J. in the example which he gives of cases prior to 1961 which I have quoted above (at page 6 of the report).

Clearly, the decision of this court in Arnott is an authoritative statement of the law. It seems to me, however, that there is at least a

degree of difference between the inter-relationship of the questions put to the jury in Arnott and the inter-relationship of the

questions put to the jury in the present case. While the allegations made concerning the plaintiff by the third named defendant, Mr

Howard, and the allegations made by the other four witnesses called by RTE dealt with similar subject matter, they did not deal with a

single incident as in the case of a road traffic accident. There is no logical contradiction in a member of the jury deciding that he or

she did not accept Mr Howard’s evidence and therefore answering “no” to question 1, but then deciding that he or she did accept the

quite separate evidence of the other four witnesses and thus answering “yes” to question 2. This was obviously the view taken by

the learned trial judge when, in reply to the jury’s request for clarification, he said:

“Those three ladies or gentlemen that you have lost can come back into play because that is a completely different question,

a completely different question in the sense had they established that proof to your satisfaction in relation to the other four

people.”

It seems to me that there is justification in the circumstances of the instant case for the view taken by the learned trial judge.

In a number of his directions to the jury the learned trial judge made clear his concern that any juror who had held against a plaintiff

on liability should not have any part in the assessment of damages. Indeed it might be said that he stressed this aspect of majority

verdicts at the expense of all other considerations. It must be accepted that the judge’s purpose in giving these particular directions

was to avoid any injustice to the plaintiff. He made this very clear to the jury. This aspect of his directions and rulings cannot be

faulted.

The situation with regard to the third question , which dealt with material injury to the plaintiff’s reputation, is somewhat more

difficult in that the only direction given on it to the jury was given in reply to a query by Mr Feeney. The judge at that time gave no

reasons for his decision that the question could be decided by all twelve jurors. In the event, however, both counsel for the plaintiff

and counsel for RTE accepted this ruling.

In summary, the rulings given by the learned trial judge were not in accordance with section 95 of the 1924 statute as interpreted in

Arnott. Based on the considerations set out above, did this misdirection result in an unfair trial and should it lead to an order for a re-

trial?

Order 58 rule 7(2) of the Rules of the Superior Courts provides:

“A new trial shall not be granted on the ground of misdirection 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 of 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 appears to such court that such wrong a miscarriage affects part only of the matter in controversy, or one only of

the parties, the Supreme Court may give final judgment as the 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.”

During the course of this trial no requisition was raised by counsel for the plaintiff on the judge’s ruling on majority verdicts. Counsel

for the first and second named defendants, Mr Feeney, raised tentative queries but did not press them. No reference was made either

to the 1924 statute or to Arnott v O’Keeffe. At the conclusion of the judge’s reply to the jury’s request for clarification counsel for

both parties expressed themselves satisfied. Thus there was no complaint of unfairness on this ground made at the trial by the

parties.

I have already referred above to the contextual differences between the questions put to the jury in this case and those in the

Arnott case. In my view no real difficulty arises in regard to questions 1, 2 and 5. There is a degree of doubt in regard to question 3.

It must, however, be borne in mind that this court does not and cannot know whether this or any of the questions was decided

unanimously or by a majority.

As far as this ground of appeal is concerned it does not appear to me that any “substantial wrong or miscarriage” has been

occasioned in the trial and I consider that this ground of appeal must fail.

In relation to the other grounds of appeal I am in complete agreement with the Chief Justice.

I would, therefore, dismiss the appeal.