Civil appeal dismissed; majority verdict rules and bank memorandum admissibility upheld by Supreme Court.

THE SUPREME COURT

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

124/01

BETWEEN/

BEVERLY COOPER-FLYNN

Plaintiff/Appellant

and

RADIO TELEFÍS ÉIREANN, CHARLIE BIRD AND JAMES HOWARD

Defendants/Respondents

JUDGMENT of Geoghegan J. delivered the 28th day of April 2004

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

it appropriate, however, to make some observations of my own on the only two grounds of appeal which gave me any real difficulty.

The first of these was the failure of the learned trial judge to give correct directions to the jury in relation to majority findings. The

second was the alleged inadmissibility in evidence of the bank memorandum produced by the bank witness, Mr. Cooney.

In relation to majority verdicts in civil actions, the legal position is governed by s. 95 of the Courts of Justice Act, 1924, which reads

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 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.”

The interpretation of the section standing alone is not without difficulty but fortunately that difficulty has been removed by a clear

decision of this court in Arnott v. O’Keeffe [1977] I.R. 1 a case which does not seem to have been cited in the court below. I will be

returning to that case in more detail but at this stage it is sufficient to note that the case is clear authority for the view that if a

number of questions go to the jury they must either each be answered unanimously by the jury or alternatively, if there is a majority

of nine or more in relation to any one of them that same majority in terms of personnel must be in agreement on all the other

questions. Unfortunately, this was not made clear by the learned trial judge. It would appear that the draftsman of the section and

the trial judge had one thing in common. They both concentrated their minds on the correct and, indeed, just concept that if a

plaintiff wins his or her case by majority verdict that same majority should assess the damages. The separate problems which could

arise from different majorities answering different questions (including, as in this case, a question the answer to which could have a

dramatic bearing on damages) before ever the issue of assessing damages was reached did not loom large, if at all, in their thinking.

The section itself contains the expression “the verdict” in three different places. In context, the expression seems to relate to the

final result of the case. It seems strange that the section was not drafted in a more elaborate way to cover the problems arising out

of separate questions relating to liability and, indeed, separate questions relating to liability on the one hand and assessment of

damages on the other particularly as the word “verdict” at the time of the passing of the Act was regularly used in two different

senses. There was a distinction between general verdicts and special verdicts. In civil cases a general verdict was a statement as to

who had won the case with an assessment of damages if it was the plaintiff or the sum awarded if the issue was one of assessment

only. Special verdicts on the other hand were findings of specific facts upon which it was the duty of the court to enter judgment

according to law (see Halsbury “The Laws of England”1st ed. Vol. 18 p. 257). S. 95 by its express wording does not really cover the

problem as to what is to happen if there are a number of different questions and different majorities become involved in the

determination of them.

Initially, the learned trial judge said this to the jury:

“... 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 was not entitled to win, it 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 nine, ten, eleven 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.”

A significant sentence in that direction to the jury is “you decide the case either unanimously or on a majority verdict.” I think that

what the judge meant by the word “the case” in that context was the liability issue and that he did not address his mind to the

separation of questions involved in relation to the RTÉ liability issue and still less did he address his mind to the problem of what was

to happen if RTÉ lost on the first question but won on the second and Mr. Howard who is only involved with the first question won in

respect of it. This oversight while regrettable was understandable because like the draftsman of the section the main concern of the

trial judge was to ensure that members of the minority on the liability issue did not attempt to cause detriment to the plaintiff when it

came to the assessment of damages. This particular analysis is not all that relevant but I have engaged in it with a view to

emphasizing that had the judge omitted to direct the jury that if the plaintiff won by a majority the same majority must be agreed on

the assessment of damages that would have been an altogether more serious omission if in fact the plaintiff had won than the

omission in his charge in this case.

As I already adverted to, any problems arising out of the interpretation of s. 95 were resolved by Arnott v. O’Keeffe. There were

three judgments delivered in that case by Walsh J., Kenny J. and Parke J. respectively. Walsh J. after illustrating some of the

problems which could arise if different majorities were deciding different questions summed up the position as follows at p. 6.

“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.”

Kenny J. in his judgment dealt with the issue as follows at p. 19 of the report.

“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. at p. 23 took the same view and he put it this way:

“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 question. 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 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 such 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.”

After Arnott’s case the law became crystal clear but the learned trial judge did not direct the jury in accordance with it. None of the

parties through their respective counsel objected. Not only that, there was express approval of the judge’s direction. Before I

comment on the effect of that approval as I see it, I think it desirable to refer back to the sequence of events and debate in relation

to this issue. I intend merely to summarise it as it is dealt with in full detail in the judgment of the Chief Justice.

At the end of the learned trial judge’s charge, counsel for the plaintiff raised one issue by way of requisition. This related to

comments which the trial judge had made in relation to a portfolio scheme in that the judge had suggested to the jury two options in

relation to it but that in the view of counsel a third option should also have been suggested. No requisition or objection was raised by

counsel for the plaintiff in relation to the part of the charge dealing with majority verdicts. I do not say this by way of any criticism.

Counsel may well have considered that what the jury was told by the judge would result in a perfectly fair trial of the issues as far as

the plaintiff was concerned. The failure to make any objection, however, is a relevant factor (among others) in considering the issue

of whether a new trial should be ordered by reason of the technically defective direction of the judge though to some extent the

failure by counsel at that stage to object became less relevant in the light of subsequent events to which I will be referring.

Immediately following on the requisition by counsel for the plaintiff, counsel for RTÉ raised requisitions the first two of which he

described as “ housekeeping matters”. He expressed the view to the trial judge that he “would have thought” 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 that this did not

clearly emerge from the judge’s direction. Counsel expressed the view that if nine jurors answered the first question “No” the same

nine should proceed to deal with question 2. Counsel’s second point was that the judge had not made it clear that if the jury

answered the first question “No” and the second question “Yes”, when they went to deal with question 3 it was open to them to give

no damages. Counsel went on to elaborate the point this way:

“That is clearly a matter. Indeed I would say as a matter of law if they found that the plaintiff had encouraged others to

evade tax, that as a matter of law it is not open to them to richly reward, which are the words Your Lordship used. It would

in law, in my submission, not be appropriate if they have found that the person encouraged or advised people to evade tax,

that in those circumstances they firstly must be told that it is absolutely open to them under section 22 to give no damages

and under no circumstances in those circumstances would the damages in any way be equated with ‘richly’ which is one of the

examples which Your Lordship gives.”

Counsel for RTÉ then went on to make other requisitions relating to more substantive matters.

It was then the turn of counsel for Mr. Howard. He confined his requisitions to the substantive points already raised and did not deal

with the so-called “housekeeping” points.

By that time the jury had been sent away until the following day and on the following morning counsel for RTÉ addressed the judge in

the absence of the jury and indicated that overnight he had changed his mind and had come to the conclusion that it could not be

right that some persons who might have answered the first question would be disqualified from answering the second. At that point

the judge expressed agreement with counsel. Counsel then elaborated on his view as follows:

“The infirmity that one is aiming to protect against is damages being dealt with by people. What I think is that all twelve 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.”

After other matters had been dealt with, counsel for the plaintiff said the following:

“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.”

At this stage I would signpost that those were strong words coming from counsel for the plaintiff but as I indicated earlier they may

have been motivated by a perception that that was in every respect a fair mode of trial. In those circumstances, I consider that this

court should only order a new trial based on this ground of appeal if it is compelled by law to do so. I will be returning to this point but

a further factual development relating to it arose to which it is important to refer.

The judge recharged the jury then in relation to some of the substantive issues and in relation to one of the “housekeeping matters”

but did not address them again on majority decisions. The jury, however, in the course of its deliberations decided to come back into

court for assistance. The foreman handed a note to the trial judge 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 did that mean that the jury wanted to know the circumstances in which “a majority decision can

be accepted”. The foreman answered “Yes”. The judge dealt with it as follows:

“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 its 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 the 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?”

The foreman agreed that he did understand. The judge continued as follows however:

“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?”

The foreman agreed that it did. But at that point counsel for RTÉ Mr. Feeney raised the query as to whether the jury’s question

related to question 3 or question 4 on the issue paper. It had, of course, referred to questions 1 to 3 and Mr. Feeney pointed out

that the learned trial judge had dealt with questions 1, 2 and 4 but not question 3. The judge agreed and he then addressed the jury

as follows:

“So I am going to deal with question number 3 now. That question is:

‘In view of the finding on 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 found that Ms Cooper-Flynn did not induce Mr. Howard by this

personal portfolio by reason of saying ‘why would you give the government 15 per cent’.

We are assuming that you 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 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 anyway’?”.

The judge then read out for the second time question 3 and said that he could not help the jury further but he did tell them that if

they found that there was no material interference with the plaintiff’s reputation by the publishing of the matters relating to Mr.

Howard then the jury would find that and that it would be a matter for them whether to award damages or not. The judge directed

that if on the other hand the jury found that even though the plaintiff was selling this product to the four other people by inducing

them to evade tax but at the same time what they said about her in relation to Mr. Howard did materially damage her character, then

the jury should award her whatever damages the jury considered to be appropriate. The foreman was clearly still troubled by the

majority issue because he then asked the judge: “If it is a majority, can twelve of us decide question 3? The judge answered: ‘Yes’

to that question. Counsel for RTÉ, Mr. Feeney, intervened to suggest that there should be discussion about this in the absence of the

jury at which point the judge sent the jury back to the room but told them to accept his answer for the moment unless they were

sent for. The learned trial judge then addressed Mr. Feeney as follows:

“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 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 replied that there was “a certain inherent logic” to the extent that the jury was not being asked to assess damages.

Finally, the judge indicated that unless anybody had any problem with his ruling he was leaving it stand. Mr. Feeney asked if that

meant that there could be a nine to three or a ten to two majority. The answer of the trial judge as set out in the transcript is “on

questions 1 and 2 and yet have the 12”. There is probably some error in the transcript at that point but I think it is reasonably clear

what the judge had in mind. Most importantly counsel for the plaintiff said: “Yes, I agree to leave it at that.”

A number of questions arise in considering whether the directions by the learned trial judge in this regard should lead to a retrial given

that they did not comply with s. 95 of the Courts of Justice Act, 1924 as interpreted by this court in Arnott v. O’Keeffe cited above.

It is trite law that a single misdirection on some matter by a trial judge in his charge to a jury whether on the civil or the criminal side

does not necessarily lead to a new trial if, in the overall interests of justice, a new trial is not required. That principle is, I think, an

ordinary common law principle in its history but, as the Chief Justice has pointed out, it is also expressly incorporated into the Rules of

the Superior Courts. In the ordinary way there are no particular statutory directions as to how a judge charges a jury. The first

question which arises here is does the fact that s. 95 of the 1924 Act involves a statutory prescription to the trial judge alter the

ordinary principles which would apply in considering whether a misdirection should lead to a new trial or not. In my opinion, it does

not. If there was an intention by the Oireachtas of Saorstát Éireann that the section should have that effect, in my view, it would

have said so. The Oireachtas would have been well aware of the ordinary principles relating to a judge’s charge in criminal and civil

trials and the principles relating to whether a misdirection could lead to a quashing of a conviction or the setting aside of a civil

verdict whether leading to a new trial or not. I take the view, therefore, that the fact that the rules concerning what a judge is to

tell the jury in relation to majority verdicts have been incorporated in a statute does not give them any additional solemnity relative

to other essential directions in a charge. I would, therefore, reject any argument based on the simple fact that the prescription is

contained in a statute.

The second question which arises is whether, if conceivably the answers to the questions might have been different had the correct

direction been given, that automatically means a “substantial wrong or miscarriage has been thereby occasioned in the trial” within

the meaning of O. 58, r. 7(2) of the Rules of the Superior Courts as interpreted by Henchy J. in Kelly v. Bord of Governors of St.

Laurence’s Hospital [1988] I.R. 402. I am firmly of the view that it does not have that meaning. Even if I was wrong about that and it

did have that meaning, I would not be convinced that there would be a mandatory requirement for a new trial under O. 58, r. 7(2).

The rule after all has been couched in negative terms. The issues on the trial of this action went to the jury on a basis that was

accepted as fair by the judge and all the parties. I entirely agree with the analysis of the Chief Justice in his judgment of the

questions and the inherent logic in the answers to them. A new trial in these circumstances would involve the setting aside of the

finding in favour of the plaintiff as well as the finding against her. There would have to be a new trial on all issues which would itself

be a gross injustice to the defendants and, particularly, Mr. Howard. This trial was obviously mounted at enormous expense and took

twenty-nine days. To order a new trial now on the basis of a direction to the jury which was consented to by all the parties would

clearly be unjust. It is undoubtedly true that there may circumstances where some fundamental error is made in a direction to a jury

and where notwithstanding assent to it by the parties an appellate court should nevertheless order a new trial. An example might be if

the plaintiff had won her case and had then been awarded damages which she believed to be inadequate in circumstances where no

direction had been given to the jury that the same majority had to be involved in the damages issue as in the liability issue. But that

is not the case here and indeed in other respects also as the Chief Justice has pointed out the case can be distinguished on its facts

from Arnott v. O’Keeffe. I would, therefore, reject this ground of appeal.

The only other ground of appeal which I have regarded as arguable is the admissibility of the document ultimately proved by Mr.

Cooney. I agree with the view of the Chief Justice that the hearsay rule was not infringed. There is an introductory statement

relating to hearsay in the second edition of “The Law of Evidence in Ireland” by Caroline Fennell at p. 255 which is worth quoting. The

author says the following:

“Cross describes the rule against hearsay as follows:

‘… a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as

evidence of any facts stated’.

The rule operates, therefore, to potentially exclude informal or oral remarks, formal written statements, sworn testimony in

previous proceedings, as well as gestures, signs, photographs, etc. The reason behind this exclusionary rule affecting

otherwise relevant and probative evidence, is that if the maker of the statement does not testify, he is not available for

cross-examination (per Wigmore:

‘The greatest legal engine ever invented for the discovery of truth’), nor can his demeanour be observed or credibility

tested. Moreover, it is desirable that the best evidence be available to the court and that the danger of inaccuracy

through repetition be avoided.”

The learned author goes on to point out that the rule “is located in the faith in the power of cross-examination; distrust of the jury’s

ability to evaluate hearsay; and a fear that if allowed, the courts would be swamped with hearsay evidence.” As the Chief Justice

has pointed out the document in this case was produced by its author in the witness box who was subject to cross-examination and

it was tendered ultimately not as evidence of the truth of its contents but as a statement of the practice in the division in the bank

of which the plaintiff was a member.

That last distinction is crucial in my view. Originally, it had obviously been assumed by the legal advisers and counsel of RTÉ that the

document had been circulated and would have come into the hands of the plaintiff/appellant in the ordinary way. At the stage,

therefore, when the document was put in cross-examination to the appellant it was with a view to it being ultimately proved by Mr.

Cooney that such a document had been prepared and therefore existed and that the appellant would have been aware of it. In the

event it emerged from the evidence of Mr. Cooney that the document, though prepared, was never circulated and, therefore, it did

not come into the possession of the appellant. This meant that the document could not be availed of by the respondents to establish

knowledge by the appellant of the contents of the document as such. However, the learned trial judge admitted it into evidence as a

statement of the practice in the appellant’s division of the bank, given that Mr. Cooney was adducing oral evidence of the practice of

that division and had given evidence to the effect that he had prepared the document for circulation. If, for some reason or other,

there was, for example, an independent inquiry into what the practice of the division at the relevant time was, the memorandum even

though unissued would be highly relevant in the ascertainment of the true position. Is it to be said that, though clearly relevant and

probative, this document cannot be produced in a court of law by reason of the hearsay rule? For the reasons given by the Chief

Justice, I am satisfied that once the purpose of the production of the document was with a view to establishing the practice in the

division and nothing more, it did not infringe the hearsay rule. This does not mean of course that it did not have a probative function

as against the appellant. The jury was entitled to form a view as to what the practice in the division was and then to draw

reasonable inferences from the whole of the evidence as to the likely awareness and/or participation of the appellant in that practice.

In making these observations, I am accepting for the purposes of the judgment the view of the learned trial judge that permitting

evidence of a practice in the division of the bank of which the appellant was a member was not in conflict with the general ruling

made by the judge that evidence relating to the policy of the bank was inadmissible. While I have some misgivings as to whether the

two rulings are wholly reconcilable, I have come to the conclusion that the distinction made by the trial judge was probably correct. I

have very little doubt that if at the time that the trial judge made the ruling in relation to the policy of the bank, he had been

informed of the precise status of the memorandum he would not have ruled it out. Even if there is some difficulty about reconciliation

with the general ruling I do not think that any injustice was caused and I certainly do not think that a new trial would be warranted

on that account. It must also be pointed out that there does not appear to have been any objection on behalf of the plaintiff to the

document being circulated among the jury before Mr. Cooney gave evidence. I would, therefore, reject this ground of appeal also.

In relation to the other grounds of appeal, I am in complete agreement with the Chief Justice and there is nothing which I can usefully

add. I would, therefore, dismiss the appeal.