Supreme Court sets aside defamation verdict for retrial due to jury misdirection on evidence and identification issues.

THE SUPREME COURT

Murray C.J

275/2006

Denham J.

Hardiman J.

Fennelly J.

Macken J.

BETWEEN:

ALAN BRADLEY

PLAINTIFF/APPELLANT

AND

INDEPENDENT STAR NEWSPAPERS LIMITED

DEFENDANT/RESPONDENT

AND

BETWEEN:

277/2006

WAYNE BRADLEY

PLAINTIFF/APPELLANT

AND

INDEPENDENT NEWSPAPERS LIMITED

DEFENDANT/RESPONDENT

JUDGMENT of Mr. Justice Hardiman delivered the 1st day of June, 2011.

Background.

These are appeals in two libel actions which were tried together and in which it is convenient to give a single judgment since the

issues arising on appeal are identical as between the cases.

On the 13th June, 2004, the defendants published the words complained of in one of its newspapers, the “Star Sunday”. The article,

a photocopy of which is attached to this judgment, was published under a headline which read:

“Inside Gangland

Siblings leading the underworld’s most dangerous armed gang”.

Underneath that in very large letters, were the words:

BROTHERS IN ARMS.

Underneath that, again, were two photographs each showing a man apparently dressed in a white tee shirt but with his head

pixellated and thereby rendered obscure except in outline. Underneath this was printed the words:

THE FAT HEADS

Pictured this week by Star Sunday, the brothers - aged 25 and 31 - are responsible for a series of lucrative armed raids

over the past four years.

Another headline read:

Massive CAB probe into pair’s four million euro fortune from bank raids.

Beneath that is a photograph which appears to be a still from the film “Heat” showing two armed robbers. Underneath that is printed

the words:

INSPIRATION: Robert de Niro with Val Kilmer in Heat - although Gardaí say the pair are no de Niros.

The text of the article, as pleaded in the Statement of Claim is as follows:

“THESE two brothers lead the most dangerous criminal gang operating in Dublin’s underworld today, Star Sunday can

reveal. The notorious pair - dubbed the Fat Heads - have made a cool €4m from their crimes. They are now the focus of a

massive investigation involving several specialist Garda units into a string of cash-in-transit robberies, gun crime and

money laundering in West Dublin.

The Criminal Assets Bureau is also investigating their substantial wealth.

The pair each have a string of criminal convictions.

Their activities have even been brought to the attention of Justice Minister Michael McDowell - such is their fearsome

reputation in the underworld.

Gardai and CAB officials believe the brothers - aged 25 and 31 - have benefited from a string of cash-in-transit robberies

carried out since 2000. Among the raids attributed to the gang are:

The theft of IRL£260,000 from a security van at Blanchardstown Shopping Centre in November 2001

The theft of £180,000 from a Securicor van making a drop-off to an ATM machine in St. James’s Hospital in July

2002

£420,000 robbed in a meticulously planned hold-up of a cash delivery van to the ATM at the Omnipark centre in

Santry in August 2002

The theft of £30,000 from the Autobahn public house in Finglas in July 2002

The robbery of £200,000 from an ATM at the Clontarf Branch of the Bank of Ireland in May 2002

The theft of £750,000 in four raids in Blanchardstown, Naas and Cabinteely in a single eight day period in mid-

February

The theft of £250,000 from an ATM machine near Swords, County Dublin in May, 2004.

Gardai believe the above list of armed robberies is the tip of the iceberg.

One security firm has been targeted at least ten times by robbers loyal to the brothers, according to Garda information.

Gardai suspect the gang’s involvement in at least 60 armed heists in the past four years.

The brothers themselves claim to trade in horses and cars from a house in West Dublin. However, they move between

various addresses in County Kildare, County Meath and Dublin.

They also have a string of cars at their disposal which they use to avoid Garda surveillance.

The gang’s activities have been brought to the attention of Justice Michael McDowell who expressed his concern at the

level of gun crime in the State in recent months.

He has already announced plans for tougher sentences for those convicted of firearms offences after studying reports

about the gang.

Gang

According to sources, McDowell was genuinely astonished at the volume of raids organised by the gang.

Garda HQ have now allocated extra resources into combating the brother’s gang.

Security companies have also been advised to step up their security and armed escorts are now being provided to all

major cash-in-transit deliveries to Banks and ATM cash machines.

Detectives say the gang model themselves on the Hollywood Heat starring Robert de Niro. In the film, de Niro leads a

high-tech outfit pulling off raids on bank vaults, armoured cars and cash in transit vans on the streets of Los Angeles.

While Gardai point out that the Fat Heads are “no De Niros”, they readily say the brothers are now the prime movers in

the Dublin underworld.

A source said: “They are very up front. They associate with known criminals in the West Dublin area.

“They don’t trust anyone and have shown themselves to use violence against their enemies.

We have linked their gang to gangland murders and several shootings in West Dublin.

“Our information indicates that rival criminal gangs are extremely reluctant to take them on because of the sheer fire

power they have,” explained the Garda source.

“The brothers and their gang are now the top dogs in the Dublin underworld. They have made about £4m from their

activities and few are willing to cross swords with them,” added the source.

Detectives point the finger of blame at the brothers for turning West Dublin into a hotspot for gun crime.

A number of people were murdered on the brothers’ turf last year as a result of gangland feuds. A number of shooting

incidents have actually happened in close proximity to the brothers’ family home.

While they appear to be penniless, Gardai believe that the brothers have invested hundreds of thousands in ‘front

businesses’ and have acquired property abroad and in South Armagh.

Our source added: “The older brother is even organising discos at the weekend in an attempt to give himself some official

source of income.”

Nightclub

Information gathered by Gardai suggests he has invested heavily in a nightclub enterprise. One brother is also in the

building trade.

The other claims to deal in imported and second hand cars. He himself drives a souped-up sports car.

Gardai say the gang are almost impossible to place under surveillance.

“The older guy is a shrewd operator. He is aware that he is under constant surveillance. He is constantly on the move and

never follows the same routine on any two days,” said one senior garda.

“A number of people act as look-outs around their family home. If they see a strange car parked near their home or

anything suspicious, he will know in minutes. If he is not hanging around outside their house, he holds meetings in the

fields around Dunsink Dump where he can’t be followed.”

Gardai consider the younger brother to be equally as cunning.

“They take no chances and have distanced themselves from committing the actual crimes. Instead they plan and teach

other young criminals to do their bidding.”

The gang specialise in robbing cash-in-transit vans. Officers believe the brothers have devised systems to disable various

security devices by the banking sector.

Hard cash is usually stored in special boxes which explode into a ball of red smoke if robbed.

Cash

The raiders disarm the devises by placing the cash boxes in a barrel of water, which prevents the box from emitting

smoke.

The two brothers usually oversee the armed robberies from a safe distance.

In one recent robbery foiled by Gardai, officers stopped the two brothers driving a van near the scene of the crime.

When the van was searched, officers found a barrel of water in the van.”

The attached photocopies permit the visual effect and layout of that and another article to be better judged.

The pleadings and issues arising.

The plaintiffs issued proceedings for libel on the 16th August, 2004. A Statement of Claim was delivered on the 23rd September, 2004,

and a defence, bearing the same date, 23rd September, 2004, was subsequently delivered. It is not clear how the Statement of Claim

and the Defence bear the same date.

In the defendants’ defence which, together with the Statement of Claim, defines the issues of the trial, publication of the article was

admitted. Significantly, however, it was denied, in each case, that the article was published of and concerning the plaintiff, or that

the article was understood to refer to the plaintiff. It was then denied that the article bore the meanings alleged in the Statement of

Claim or any meaning defamatory of the plaintiff. There was then a pleading that if the respective plaintiffs were identified by the

publication then “the same are true in substance and in fact in their true meaning, but not in the meanings pleaded in the Statement

of Claim”.

This is a most unusual pleading. The learned trial judge subsequently held, correctly in my view that it did not constitute a

recognisable plea of justification. When confronted with this plea the plaintiffs raised a notice for particulars of the plea. The

defendant replied to this by letter of the 1st February, 2006, in the following form:

“In answer to the queries posed in your letter of the 24th January, 2006, the defendant answers as follows:

(a) If, contrary to the contention of the defendant, the words complained of identify the plaintiff then the

defendant pleads that they mean:

(1) that the plaintiff is suspected by the police and the CAB to be involved in serious crime and/or there

are reasonable grounds for that suspicion.”

The balance of the letter is not immediately relevant.

This plea gave rise to legal argument before the learned trial judge, Ms. Justice Dunne, on the 14th and 15th February, 2006. On the

latter day the learned trial judge gave a ruling in the following terms:

“In practical terms, and I think this key, I don’t think that the defendants in this particular case can advance these

matters by way of suggesting that the article complained of is true in substance and in fact. I don’t see how even if they

succeed in proving the various matters, for example, that they are suspected of crime, that they are thought to be

involved in particular matters that have been set out, that that will result in a successful plea of justification… I don’t

think that they [the defence] are entitled to advance a plea which falls so far short of justification in the context of what

is the meaning of the article as a whole in terms of where it stands. So far as that is concerned, it is out.”

In other words, it appears to me, and I did not understand it to be denied on the hearing of this appeal, that the learned trial judge

ruled out any plea of justification. In this, in my opinion, she was undoubtedly right since the article contained multiple statements

which were obviously statements of fact about the two brothers who are the subject of the article, whether identified in or not.

These statements include, for example, the uncompromising headline:

“Inside Gangland

Siblings leading the underworld’s most dangerous armed gang”.

That is not a statement of opinion, or a suspicion, but a statement of fact. The very first statement of the article is:

“These two brothers lead the most dangerous criminal gang operating in Dublin’s underworld today, Star Sunday can

reveal”.

Since this aspect of the case is not the subject of the present appeal, I forebear to quote further. The relevant fact is that the

action proceeded to trial with no plea of justification. In other words the defendant did not contend at the trial that the article was

true. However, prior to the trial the defendant had served a notice under Order 36, Rule 36 of the Rules of the Superior Courts. This

Rule provides as follows:

“In actions for libel and slander, in which the defendant does not by his defence assert the truth of the statement

complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of

damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff,

without the leave of the judge, unless seven days at least before trial he furnished particulars to the plaintiff of the

matters as to which he intends giving evidence.

For centuries, it has been open to a defendant in a libel action, even though he cannot prove the truth of what he published, to bring

evidence before the Court to show that the plaintiff, apart from the defendant’s publication, had so poor a reputation that the

damages to which he would otherwise be entitled for the libel should be reduced or “mitigated”. This kind of evidence is called

evidence in mitigation of damages. But it is strictly confined to evidence of the plaintiffs’ general bad reputation and the defendant is

not allowed, for example, to introduce rumours or suspicions that the plaintiff had done what the article alleged or evidence of other

discredible acts he has committed. The reason for this is that, if the law were otherwise, a plaintiff would have to put his whole life

and every part of it “on the line” in order to rebut a specific libel. But for the defendant being confined in this way libel cases might go

on indefinitely and a huge number of issues, for which the plaintiff could not be properly be prepared might be alleged.

It has been recognised for many years that there is a considerable danger that a defendant, under the guise of attacking the

plaintiff’s general reputation will introduce material tending to suggest that what he published was in fact true, without committing

himself to a plea of justification.

In any event, this case proceeded with just two issues raised by the defence. These were:

(a) Was the article written of and concerning the plaintiffs’? Was it about Alan Bradley and Wayne Bradley? Were they

identified in it either to all the readers, or to some group of readers such as those who lived in the area where the Bradley

brothers live, family members, etc.?

(b) If the jury accepted the evidence led by the defence as to the Bradley brothers’ reputation in fact, to what extent

did this mitigate the damages to which they would otherwise be entitled?

Of these two issues, only the first could lead to a verdict for the defendant. This is because every plaintiff in a libel action must show

that the words of which he complains were published “of and concerning” him. If he does not succeed in doing this he must lose the

action because a vital element of the tort of defamation is missing.

This is what happened in the present case. The jury found that the words had not been published of and concerning the Bradley

brothers and therefore they lost the case.

But before that happened, the jury (who obviously took a highly intelligent interest in the proceedings) asked the learned trial judge a

direct question as to whether or not they could make use of the “reputation” evidence in deciding on the “identification” issue. The

learned trial judge told them that they could not. Very shortly afterwards, having heard argument from counsel, she apparently

became convinced, contrary to the previous ruling, that the jury were entitled to look at all the evidence in deciding the identification

issue. But the jury were never told this. What happened in court is reconstructed in some detail later in this judgment. But another

issue must first be noticed.

The second article.

Some months after the defendant had published the first article, they published another one. The difference was that, on the second

occasion, the article was clearly about Alan Bradley and Wayne Bradley. It said so in terms and gave their names. There was also

published, as part of the second article a photograph of the first article as it had appeared in the defendant’s tabloid newspaper. A

copy of this article, too, is attached to this judgment. It will be seen that headline is “I’m not the ATM bandit, accompanied by a

picture of Mr. Alan Bradley and on another page a further headline “We are not ATM thieves” and underneath that paragraph “Dublin

brothers say gardaí are barking up the wrong tree”. There is a picture, which this time is not pixellated or otherwise obscured of Alan

and Wayne Bradley, who are named. Above that there is a picture of the previous article “Brothers in Arms”. Underneath the

photograph of that previous article are the words:

“STAR SUNDAY JUNE 13

We first told of CAB probe.”

This article was published on the 22nd August, 2004, about two months after the first article. Both the photographs and the text

clearly refer to the first article.

The story in the second article was centred on the fact that the two brothers had contacted “Star Sunday” to say that they were

not behind the string of ATM robberies referred to.

Another central issue on this appeal relates to how that second article, and the defendants’ evidence of general reputation was dealt

with at the trial.

The Jury’s question.

During the jury’s deliberations, on Wednesday, 22nd February, 2006, the sixth day of the trial, the foreman of the jury asked a

question as follows in open court:

“We have one question that is based on the direction that was given to us in relation to how we would come to a

decision on the two aspects of this case. It turns on the difference between identity and reputation. We were directed

towards the fact that the burden of proving identification in this case rests with the plaintiffs. They present a number of

pieces of evidence from their side that they claim identifies them in the article.

In the second part, the defence made an argument based on reputation that turns on the issue of damages. We were

wondering if it is proper and correct to take into account the issue of reputation when we are looking at the issue of

damages, if I make myself clear?”.

The learned trial judge’s response to this extended into the next page of the transcript, and is set out below. The judge had

previously ruled, as is set out in paragraph 13 of the defendants submissions:

“… that a newspaper article published by the defendant on the 22nd August, 2004, subsequent to the article of the 13th

June, 2004, which was the subject matter of these proceedings was not admissible to establish identification.” (Emphasis

added)

The evidence as to reputation in question was principally the evidence of a garda inspector who said, amongst other things:

“Within the police force, the Bradley brothers have, what would be described as a notorious reputation. I mean they are

believed to be, from our perspective, they are believed to be what would be described as… their reputations in the police

force is that they are serious criminals… armed robberies, particular in respect of automated banking machines, that is

what is known as ATMs, bank links, which would be where you put your card into. That type of robbery in particular.”

Relevance of this evidence.

It will be recalled that the article to which the action related showed a picture of “the scene of the €180,000 ATM robbery at St.

James’s Hospital”, and referred to other ATM robberies as follows:

The theft of €180,000 from a Securicor van making a drop-off to an ATM machine in St. James’s Hospital in July 2002

€420,000 robbed in a meticulously planned hold-up of a cash delivery van to the ATM at the Omnipark centre in Santry in

August 2002

The robbery of €200,000 from an ATM at the Clontarf Branch of the Bank of Ireland in May 2002

The theft of €250,000 from an ATM machine near Swords, County Dublin in May, 2004.”

As can be seen, the emphasis on ATM robberies is a feature of both articles, and of the Garda Inspector’s evidence.

It seems clear from this and from the article as a whole that they and the evidence of reputation might - it would be a matter for the

jury - tend to identify the plaintiffs as the brothers who are the subject of the first article. However, the judge excluded, the second

newspaper article, from consideration by the jury “when we are looking at the issue of identification”. As we are about to see, she

also excluded the general evidence of reputation from the jury’s consideration of the identification issue.

Accordingly, between pages 155 and 157 the jury asked the question “… if it is proper and correct to take into account the issue of

reputation, when we are looking at the issue of identification?”. The judge ruled:

“I do not think there was any matter by way of reputation that could assist you on the question of identification, because

the matters in relation to reputation are, relatively speaking, limited and I do not think there was anything in the matter

which I have been dealt with in evidence in relation to reputation that would go to identity. So I think that the answer to

your question is probably, at this stage, it is no.” (Emphasis added)

Counsel then made submissions to the learned trial judge and she said, at page 158 of the transcript of Day 6; in the absence of the

jury:-

“If I thought that the jury were of the view that they cannot take into account the defendant’s evidence in coming to a

conclusion on identity, then clearly that would be wrong”.

On the following page she said:

“I do not think that the matters that are relied on by the defendant by way of reputation could be matters which identify,

but I want to make sure that the jury understand that they are entitled to look at the evidence given by both the

plaintiffs and the defendants in coming to a view on identity even though the…”.

Counsel for the defendant argued that the jury had already been correctly directed on the question and the judge decided to “leave it

as it stands”.

In my view, the above extracts manifest a certain amount of confusion which came to afflict the case. There were two issues and

two issues only before the jury. The first was as to whether the article complained of had been written “of and concerning” the

plaintiffs’: did it identify them?

The second issue was as to the effect of the defendant’s evidence that the plaintiffs had a bad reputation, which evidence was

offered in mitigation of damages.

There is absolutely no warrant in law for saying that in considering the first issue (or the second, where the principle is the same, but

the first issue is what is relevant here) the jury is not entitled to have regard to all of the evidence in the case.

Where a plaintiff’s case is weak in certain regards, defending counsel must consider the question of whether, if they go into evidence,

they will improve the plaintiff’s case, or even make up some essential element which is missing.

At the close of the plaintiffs’ case in this trial, there was, perhaps, only just enough evidence to get past a direction on the question

of identification. But the defendant then led evidence, in a case where identification was an issue, in which a Detective Inspector

spoke of the Bradley brothers as having a reputation for, inter alia, the robbery of ATM machines. The main picture in the article

complained of showed the site of an ATM robbery and the text identified four separate ATM robberies in which it said “A gang led by

two brothers” were involved.

There was clearly risk from the defendant’s point of view in leading this evidence. But they decided to take that risk.

The question of the foreperson of the jury was a very natural one where the jury had been instructed as to the two issues arising. It

was not merely natural, it was perspicacious and intelligent. It received a negative answer, meaning that they could not consider the

evidence led as to reputation in considering the issue on identification.

Very shortly afterwards, as appears from the extracts above, the learned trial judge had realised that this was incorrect and that the

whole of the evidence was available to the jury in considering both issues. She said so in unambiguous terms. She also said she would

tell the jury this. But in some way, which is not easy to identify precisely, simply from the transcript, that did not happen.

The above summarises the first confusion which arose at the trial. The jury were wrongly told they could not consider the

“reputation” evidence on the “identification” issue. It was then decided to correct that incorrect instruction but this did not occur.

Alternatively, though this is not stated in the transcript, the decision to “leave it as it stands” may reflect an unspoken acceptance

of the defendants’ submission that the jury had already been adequately directed. I could not agree with such a conclusion, if it were

arrived at, for the reasons indicated above and for the reasons given by the learned trial Judge and quoted above from pages 158 and

159 of the transcript for Day 6 of the trial.

The second confusion is the following. Though the learned trial judge came to the conclusion that the defendant’s reputation

evidence was indeed available to the jury on the identification issue, she herself plainly did not think much of it as evidence. She said

so in unmistakable terms at pages 157 and 159 of the transcript. The learned trial judge’s statement on the latter page has been

quoted in full above.

The learned trial judge was quite clearly entitled to have her own view on the quality and content of the evidence. She was also

entitled to express such a view to the jury. If she had done so, she would no doubt have told them that this was merely her opinion,

that the matter of the meaning, credibility and content of the evidence was entirely a matter for them, and not for her. In fact, this

did not arise because the judge did not alter the instruction to them that the reputation evidence was not available at all on the

identification issue.

Effect of the foregoing.

The defendants, the respondents of this appeal, maintain that even if they are wrong about the foregoing matter, they are entitled to

rely on Order 58 Rule 7(2) of the Rules of the Superior Courts. This provides as follows:

“A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence…

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

trial…”.

In order to see whether that condition is met in regard to the point discussed earlier in this judgment, one must first look at the

actual verdict of the jury.

The verdict was given at 5.33pm on the sixth day of the trial, after the jury had retired about two hours previously, at 3.38pm. In the

interval, at a time which is not precisely indicated on the transcript, the jury had come back and asked t he question discussed

above.

It is clear from the foregoing that the question of whether or not the jury could have regard to the reputation evidence in relation to

the identification issue had arisen not long after they had withdrawn and that their question about it was answered by the judge

about an hour, or less, before they gave the actual verdict.

The first question left to the jury was as to whether the article had been published of and concerning the first plaintiff. The jury

answered this “no”. They answered the same question about the second plaintiff in the same way. That was the end of the plaintiffs’

case and the defendants became entitled to a verdict on the general issue, which they got.

In those circumstances, when the jury addressed the question of identification on a basis subsequently stated by the learned trial

judge herself to be an incorrect one it seems to me that a substantial wrong or miscarriage did indeed occur. The plaintiffs’ were

entitled to have the question of identification addressed on the basis of all of the evidence in the case and that did not occur. The

case is an unusual one in that the learned trial judge seems to have intended to correct the instruction to the jury but did not do so,

perhaps because she accepted the defendant’s brief submission on the point.

In my opinion that is sufficient to resolve this appeal in favour of the plaintiffs. Since, however, a good deal of argument was

addressed to another question, which is likely to arise again at a re-trial, I propose to address it here. This is the issue of the

defendant’s subsequent publication.

Defendants’ subsequent publication.

Where a defendant publishes one article which does not name a plaintiff or otherwise clearly identify him, and subsequently (as in this

case) publishes another article which both names and identifies him, and which refers to the first article and actually includes a

photographic representation of it, is the second article admissible in evidence for the proposition that the first article was published

“of and concerning” the plaintiff?

As we are about to see, this simple question has led to conflicting judicial decisions which are difficult to reconcile and to much

confusion in a number of Common Law countries. Most relevantly to the present case, there is conflicting English Authority which was

cited both at the trial and on the hearing of this appeal.

The English Authorities

An extraordinary feature of the argument on this appeal was that it became quite clear that the main judgments in each of the

apparently conflicting English Authorities were given by the same very eminent judge, Lord Denning MR, within six months of each

other.

The confusing development of English law may be traced through successive editions of the well known and well regarded text book,

Gatley on Libel and Slander. In the Eighth edition of this work (1981) it is said at para. 1308:

“The plaintiff may give in evidence any subsequent article written by the defendant in which the libellous article is

referred to, or the name of the plaintiffs’ mentioned, or indeed any facts or circumstances known to the persons to whom

the words were published from which it can reasonably inferred that they understood the words to refer to the plaintiff

(para. 1308).

The ninth and tenth (2004) editions treat the question in an identical form of words at para. 32.19 which is headed “Identification

from a subsequent publication”. It says:

“Although as a general rule a claimant cannot rely on events subsequent to publication to establish that the words

referred, or would have been understood to refer to him (Grappelli v. Derek Block [1981] 1 WLR 822). In certain

circumstances evidence may be admissible of a subsequent publication naming the claimant for the purpose of identifying

the claimant as the subject of defamatory allegations in which he is not named. In Hayward v. Thompson [1982] QB 47

the plaintiff complained of two articles published in a Sunday newspaper on consecutive Sundays in the first of which he

was not mentioned by name. The judge’s ruling was that it was permissible for the jury to look at the second article to

see to whom the first article referred, was upheld on appeal. This ruling has been applied and extended in Australia to

allow a plaintiff claiming in respect of a defamatory item in a morning newspaper which did not name him to rely upon a

television programme in which he featured broadcast later that day (Baltinos v. Foreign Language Publications [1986] 6

NSWLR 85).”

It can thus be seen that the very clear statement in the 1981 edition has been transformed over the ensuing twenty years or so into

a much more nuanced and doubtful treatment. This, undoubtedly, is due to the great confusion which has arisen as a result of two

cases in the English Court of Appeal, the first being Grappelli and Anor. v. Derek Block (Holdings) Ltd. [1981] 1 WLR 822. This case

was heard before the English Court of Appeal (Denning MR, Templeman and Dunn LJJ on the 19th and 20th January, 1981. The other

Hayward v. Thompson & Ors. was heard before the Court of Appeal in England (Denning MR, Baker and Rees LLJ) on June 2nd, 3rd,

4th and 5th, 1981. The judgment was given on the 22nd of that month.

In Grappelli, the plaintiff, Stephane Grappelli, an internationally known musician, had employed the defendants as his promoters. The

latter purported to arrange concerts in various places in England for him. It appears that they did this without his authority and they

subsequently told the owners of the venues that the concerts had to be cancelled because Mr. Grappelli was “very seriously ill in

Paris” and that it would be surprising “if he ever toured again”. About five months later the defendants by advertisement and a press

release announced a number of concerts to be given by the plaintiff at different places on dates which included some of the dates on

which the first concerts were to have taken place. The plaintiff claimed damages for injurious falsehood, and for libel alleging that the

facts gave rise to an innuendo that the plaintiff had given a false reason for cancelling the concert which he knew to be false. The

defendant sought to strike out the allegation of libel and slander because the pleadings did not identify any members of the public

who were alleged to acknowledge of the intrinsic facts supporting the innuendo. They failed before the Master and in the High Court

but succeeded in the Court of Appeal. Denning MR said:

“I would go by the principle, which is well established, that in defamation the cause of action is the publication of

defamatory words of and concerning the plaintiff. The cause of action arises when these words are published to the

person by whom they are later read or heard. The cause of action arises then: and not later.”

We will refer to a New Zealand case which was not cited to the judge below. It is Simons Proprietary Ltd. v. Riddle

[1941] NZLR 913. Blair J. seemed to me to put the position quite accurately when he said:

‘On the authorities - see Cassidy v. Daly Mirror Newspapers 1929] 2KB 331 and Tolley v. JS Fry and Sons Ltd.

[1930] 1 KB 467 - innocent matter may be given a defamatory meaning by readers with knowledge of facts not

known to the writer. But these cases do not lay down that a writer of innocent matter can by reason of certain

facts coming into existence subsequent to publication of his innocent matter become liable in damages for libel

because persons learning of that subsequent material are able to read into the innocent matter a defamatory

meaning’.

That seems to me to be correct. He emphasised it by saying that, if the person was liable in damages in those

circumstances it would mean a great extension in the law of libel. He said it would be extending it much too far:

‘to ascertain whether the next day or the next week or the next year may not say or do something that will enable

a defamatory meaning to be given to otherwise innocent statements’.” (Emphasis added)

Dunn LJ, concurring, said at page 831:

“Like Lord Denning MR I would prefer to deal with this on principle. I agree that a publication is an essential part of the

course of actions; but once there is publication the cause of action is complete, and there is no room for the doctrine

that cause of action can, so to speak, be allowed to be inchoate or lie dormant, until such time as some fact emerges

which would transform an otherwise innocent statement into a defamatory one. That I believe to be the principle

underlying the judgment of Blair J. in [the New Zealand case]; and on that ground I too would hold that these paragraphs

alleging libel and slander cannot stand. I think the plaintiff should rely upon the allegation of injurious falsehood and I

would allow the appeal’.”

It will be seen, therefore, that the context of the remarks about reliance upon subsequent publications was that of an alleged

innuendo which would allow a defamatory meaning in the original article to become clear.

The context of the next case, Hayward v. Thompson, is very significantly different. This related to the so-called “Scott affair”. The

“Scott affair” was an allegation by a man called Andrew Newton that he had been paid £5,000 to murder a Mr. Norman Scott, who

had claimed to have had a homosexual relationship with Mr. Jeremy Thorpe, former leader of the Liberal Party. The article first

published claimed that the names of two more people connected with the affair had been given to the police and that one was a

wealthy benefactor of the Liberal Party. Mr. Hayward was a wealthy philanthropist resident in the Bahamas who had indeed given over

£200,000 to the Liberal Party. He was not however named in the first article. A week later, however, a second article in the same

newspaper headed “New name in Scott affair” named the plaintiff and also referred to him as the Bahama’s based millionaire who once

gave the Liberal Party £150,000. The plaintiffs claimed damages for libel contained in these editions of the Sunday Telegraph. The trial

judge ruled that the second article could be considered by the jury in order to determine to whom the first article referred. He said:

“It seems to me, if you publish words of the nature which were published on the 9th April and then on April 16 identify the

plaintiff as the person, that a grave injustice would occur if the plaintiff were not entitled to show that his identity had

been established as the subject of the defamatory statement”.

It was this statement that was upheld on appeal. Denning MR agreed that the second article was admissible in evidence so as to

show that in the first article the author aimed at the plaintiff and intended to refer to him. He found that the principle in Grappelli did

not apply where the original words were defamatory on the face of them, were “aimed at” or “intended to refer” to the plaintiff and

the question was one of identification. Baker and Rees LLJ agreed and they also emphasised that the article of the 9th April was not

an innocent one, as the original statements in Grappelli had been. It was apparently this fact that distinguished Hayward from

Grappelli and other cases where the Court was dealing with an attempt to make an innocent statement defamatory by facts which

came into existence subsequent to its publication. Sir Stanley Rees commented that if the evidence was not admissible:

“… it would be open to a newspaper to publish a virulent libel without identifying the person defamed but adding a

statement that the victim would be identified in a week’s time. The newspaper could then a week later publish the name

of the person defamed without attracting liability for libel”.

Lord Denning MR at p.60 said:

“The jury, no doubt, inferred that Mr. House (the journalist) knew the name all the time: and simply used the phrase

about ‘a wealthy benefactor’ as a cover up hoping that it would give him an answer to an action for libel. It gives him no

answer. The second article was admissible in evidence to show that in the first article Mr. House aimed at Mr. Jack

Hayward and intended to refer to him: and therefore that the first article was published of and concerning Mr. Hayward.”

Sir George Baker said:

“… that the article of April 9 was not ‘innocent’ is I think of importance when one comes to consider the other arguments

for the defendants. [Counsel] says that the article of 16th April cannot be admitted to throw light on the article of April 9

and the judge was wrong in refusing to order that [the relevant part of the pleadings] be struck out.”

He referred to the authorities including Grappelli, and distinguished it:

“But there the Court was dealing with an attempt to make an innocent statement defamatory by facts which came into

existence subsequent to its publication. That is clear from the adoption by Lord Denning MR of a passage from the

judgment of Blair J. in Simons Proprietary Ltd. v. Riddle.”

Grappelli versus Hayward: Conclusion.

It appears to me that in these two cases, the learned members of Court of Appeal in England who dealt with them considered that

they were dealing with two quite different situations. In part, the distinction turns on the word “innocent” which is used in both

cases, as the extracts cited above show. The first publication, that in Grappelli, was “innocent” in the sense that it lacked any

defamatory content. It was merely a statement that Mr. Grappelli was seriously ill. To be seriously ill is a great misfortune but a

statement to that effect is not normally capable of a defamatory meaning. A false statement that a person is seriously ill may also

cause him considerable loss especially if he is a self employed performer like Stephane Grappelli, and that is the meaning of the

statement at the end of the judgment of Lord Justice Dunn that the plaintiff should confine himself to the action for malicious

falsehood. But the first publication in Grappelli was “innocent” in the sense that it was not capable of a defamatory meaning about

the person to whom it related. It was only when, some months later, it transpired that the plaintiff was indeed going to perform

elsewhere on dates which he had previously cancelled due to “illness”, that the innuendo that the plaintiff had lied about his reasons

for cancelling the first commitments arose. The true facts appear to be that the agents had acted beyond their authority in

committing him, without his knowledge, to the first set of dates. Rather than admit this, they had then invented the story of an

illness in order to extricate themselves.

In the other case, Hayward, there is no doubt from the report that the first publication was highly defamatory. The very headline

“Two more in Scott affair” is manifestly defamatory when it is realised that the Scott affair was, a conspiracy to murder. The article

then went on to say that two more people “connected with” the affair had had their names given to the police, and that one was a

wealthy benefactor of the Liberal Party. The meaning of the article is briefly and convincingly summarised by Sir George Baker in the

first two paragraphs of his judgment:

“ ‘In’ means ‘in’. The article of the 9th April, 1978 is headed ‘Two more in Scott affair’. What, asks the uninformed reader

is the ‘Scott affair?’ On reading further he will discover that it is an allegation by a Mr. Andrew Newton that he had been

paid €5,000 to murder a Mr. Scott, who had once claimed he had a homosexual relationship with Mr. Thorpe, the former

Liberal leader. He would also discover that ‘police have been told’ that ‘a wealthy benefactor of the Liberal Party’ and the

other man had ‘arranged for a leading Liberal supporter to be ‘reimbursed’ £5,000’ and that the names of the two men had

been given to the police who must have already taken into custody a Mr. Le Mesurier described as ‘on police bail’. The

article is by Christopher House, Crime Correspondent. So the reader can now expand the heading to ‘wealthy benefactor

of the Liberal Party is involved in this payment of £5,000 to Newton to murder to Scott and one man has already been

arrested and bailed’.

On this analysis it seems to me impossible to contend that the opening sentence of the article ‘The names of two more

people connected with the Norman Scott affair have been given to the police’ means no more than that there is an

investigation which may result in the wealthy Liberal benefactor being eliminated from the Inquiry or even, as happened,

being a prosecution witness as was suggested to Chief Superintendent Challes in cross-examination.”

In Hayward as in the present case, the words originally published clearly meant that a person, identified in the English case as a

wealthy benefactor of the Liberal Party and in the Irish case as one of two brothers of a particular age which was accurately stated,

were involved in serious crime which was described in considerable detail. The only thing lacking was an express statement of identity

of the people in question. This information was later supplied by the same author and publisher who are responsible for the first

article, in a subsequent edition of the same paper. In the second article in the present case, the paper actually boasted of being the

first to reveal (in the original article) that the brothers, who are then named, were the subject of a “massive” CAB investigation.

I have already quoted the passage from the judgment of Sir George Baker in Hayward in which he distinguishes Grappelli. He went on

to say that in Hayward, unlike in Grappelli, there was nothing innocent about the first publication.

Denning MR distinguished the earlier case in much the same way. At p.59 of the Report he said, referring to Grappelli:

“It was there held that, where words in a publication were not on the face of them capable of a defamatory meaning, it

was not permissible to bring in a subsequent publication so as to make them defamatory.

Lord Rawlinson [counsel for Hayward] submitted that that case did not apply where the words were defamatory on the

face of them, and the only question was one of identification. Did they refer to the plaintiff? Or would they be understood

as referring to the plaintiff? I accept Lord Rawlinson’s submission.”

This distinction by Lord Denning was however based on his conviction that the second article shows that “the defendant intended to

refer to the plaintiff and… he is to be given credit for hitting the person whom he intended to hit”.

I cannot agree with the last quoted statements of Lord Denning in as much as they imply that intention is a necessary constituent of

the tort of libel. I do not believe that proof of intention is necessary to constitute a libel action and I do not believe that, in general,

the defendant’s intention is of relevance, except in the case where malice is in issue or the publication is said to be accidental. I

agree with the statement of the learned editors of the 10th edition of Gatley:

“It has to be said that Lord Denning’s emphasis on intention is somewhat in conflict with the established principle that

save in the context of malice the intention of the publisher of a libel is irrelevant as regards his liability”. (Para. 32.19,

footnote 73)

This does not mean, however, that evidence that the same author and publisher have published a subsequent article linking the

plaintiffs by name to the allegations previously made of two unnamed brothers of the same age as the plaintiffs, who are also brothers

of the stated ages, is inadmissible and must be excluded from consideration in an action based on the first article. To do so would be

highly unrealistic, in the sense that it would exclude from the jury’s consideration material which every person of normal intelligence

would consider relevant to the question, who was the first article published about? It is one thing to say that intention is neither

necessary nor sufficient to constitute a libel: it is quite another to say that a specific article undoubtedly published in the same

newspaper by the same journalist was an employee of the same defendant, must be excluded from consideration on the question of

identification.

There are a great number of old cases from unusual sources quoted in the various editions of Gatley I have mentioned above. In

particular, there is an unaccountable emphasis on 19th century American State Court decisions. I intend to quote only from one of

them, not because it is the judgment of the Supreme Judicial Court of Maine in White v. Sayward (1851) 33 Maine R. 322, but simply

because I think it puts the point very well. The Court said:

“If subsequent publications were to be entirely excluded great injustice might take place. It would be in the power of a

party so to frame an article published, in reference to the person intended to be affected, that although it might be

perfectly understood in the neighbourhood of the one supposed to be accused, that he was referred to, and still be

attended with great difficulty if an attempt should be made to satisfy a jury upon the point. And the article may have

been published under such circumstances and in such terms that it may be supposed that he was influenced by none but

pure motives and a sincere desire to prevent an imposition on the public and upon individuals. Subsequent publications,

made at a time when the author was less cautious, not libellous in themselves so much as containing a reference to the

former article complained of, explanatory of the meaning and exhibiting the motives and designs of the publisher would be

pertinent”.

The points made in this passage are graphically illustrated in a much more recent case, a judgment of the Court of Appeal for Ontario,

Misir and Metro Orthopaedic and Rehabilitation Centre Incorporated v. Toronto Star Newspapers Ltd. (1997) 105 O.A.C. 270. The

case seems amply to illustrate the proposition that, in defamation, the most improbable facts may easily occur. The judgment of the

Court is that of Laskin JA.

It is central to an understanding of this case to note that by reason of s.5(1) of the Canadian Libel and Slander Act, 1990, an

intending plaintiff must serve a notice on the defendant, within six weeks after the alleged libel has come to his notice. In the case I

am discussing the Toronto Star published nine articles about Ontario’s car insurance system, alleging fraud against public officials,

lawyers and doctors. These were published between May 13 and May 17 1995. The titles of the article are set out at para. 4 of the

judgment and give a clear idea of the sort of journalism that was being practised. All the articles were by the same person. It was

alleged that an organised ring had defrauded 29 insurers of $1.1 million by means of 240 suspicious car claims. None of these articles

referred to the plaintiff, who was a lawyer, nor an associate of his, S., who was a doctor.

On the 30th September, 1995 the Toronto Star published the final article in the series, written by the same journalist. This was well

over six weeks since the publication of the last of the original batch of articles. This article did name Misir and his corporation Metro

Orthopaedic. It also condemned the activities of Dr. S. and emphasised the “interesting web of connections between Misir and Dr.

S.”.

The plaintiff served the notice required by the statute on October 11th 1995 and relied on the last published article, that of

September 30th, which for the first time named Miser and his corporation “thereby clearly and directly raising the implication that the

contents of the earlier articles are directed towards Miser and Metro Orthopaedic.

The similarity to the present case is considerable. The plaintiff was seeking to rely on a subsequent article to prove that he and his

company are the persons about whom the earlier articles were written.

The defendants then brought a motion before delivering a defence. They claimed that the earlier libels were barred, having regard to

s.5(1) of the Libel and Slander Act already referred to. They also asked the Court to strike out as disclosing no reasonable cause of

action the plaintiff claims for libel in the earlier articles. The motion judge dismissed the defendant’s motion and the plaintiffs were also

successful on appeal. In the judgment referred to both Hayward and Grapelli, both cited above, and discussed at para. 16ff. The

judgments of Denning MR and of Rees LJ are extensively cited. Laskin JA concluded, at para. 18:

“Applying these principles, the trier of fact will be entitled to find that the May articles were defamatory of the plaintiffs

because of the publication of the September 30th article. Alternatively, the trier of fact may be entitled to treat the

separate publications, the May and September articles, as a single libel…

The decision of the Supreme Court of Canada in Botiouk v. Toronto Free Press [1995] 3 SCR 3 supports this approach. In

Botiouk three documents were alleged to be defamatory. The trial judge, also Caruthers J., held that ‘although the

content of each document could be taken individually as to its defamatory nature, all three were to be taken together as

creating a single act of libel’.”

There was, apparently, a judicial discretion to do this and the trial judge did so, upon request.

The judgment continues, at para. 19:

“In upholding the trial judge’s decision, Corry J. for the majority of Supreme Court of Canada observed at page 26;

‘there can be no doubt that the trial judge was correct in concluding that the combined effect of the three

documents published by Maksymec and the appellant lawyers was clearly defamatory’.”

Laskin J.A. also stated, at p. 5 of the judgment:

“The trier of fact can look to the September 30 article to see to whom the previous 11 [sic] articles referred. A

newspaper cannot avoid an action for libel by publishing a series of defamatory articles but only linking the plaintiff to

defamation by identifying them in the last article.”

I respectfully agree with the learned Canadian judges. I do not think that there is necessarily a contradiction between the judgments,

even those of Denning MR, in the two English cases cited. They were dealing with quite different circumstances. One was an attempt

to establish that an innocent earlier publication could be rendered defamatory by a consideration of a fact - the advertisements for

the later concerts - which did not arise at all until after its publication. I fully agree that that is inadmissible because of the unfairness

referred to in several of the judgments. The issue in Hayward was quite different. The defendants published an article whose content

was clearly defamatory and not “innocent” as the learned English judges put it, about two unnamed men. Subsequently it published

further material which clearly identified one of the men, Mr. Hayward. I have referred to cases separated by almost a century and a

half which point to the injustice which would arise if a defendant could avoid liability for a gross libel - such as an allegation of

conspiracy to murder or other gross criminality - simply by publishing the article which identified the plaintiff separately and after the

main defamatory publication, whether one week after as in Hayward or a number of months after as in Misir and in this case.

Some more general observations.

This case illustrates some of the major deficiencies in libel actions which make them unduly prolonged, unduly expensive, and

extremely unpredictable in the course.

The first is oddity of pleadings. The defendant put in a defence here which was resembled but was not, a plea of justification.

When their plea was particularised, it turned out that the defendants were prepared to defend merely the proposition that the

brothers who are the subject of the article were suspected by the gardaí of committing serious crimes. If that was all the article they

had published said, that defence would be quite appropriate. But the article went much further and stated in terms as a statement of

fact that the brothers in question were involved in serious crime. It sought to obscure this inconsistency by saying that that was the

true meaning of the article, which is manifestly false.

This plea remained on the record for a number of years. It was eventually found, quite correctly, not to be a plea of justification and

was disallowed. But this was after the action had begun with the result that, until shortly before the evidence started, no-one in the

case, not the parties or the judge - knew what the issues in the case actually were.

In my view, a defendant who wishes to plead justification must realise that he must justify the article actually published. In some

cases there may be some genuine doubt as to its meaning: there is none here.

Odd forms of pleading such as this may arise in circumstances where the defendant realises that he cannot justify what he actually

printed but believes he may be able to justify something not dissimilar. Accordingly, he pleads that the article means something other

than what the plaintiff alleges and that, in this sense, it is true.

A plaintiff confronted with such a plea, in order to ensure an efficient and relatively brief hearing, which is no more expensive than it

needs to be, should in my view consider bringing an application to the Court by way of motion to decide whether or not the plea is a

good one, and to resolve any genuine issues of meaning. In practice, this counsel will be of no great use since the length of time

required to bring on a substantive motion to a proper hearing, and still more to bring the result of such hearing to appeal, is now very

great indeed. But that is not something the Courts can remedy.

Secondly, there is laxity in applying the rules of evidence. Although, as stated elsewhere in this judgment, a defendant is entitled, if

he can, to bring evidence of the plaintiff’s general bad reputation with a view to mitigating damages, this entitles him only to bring

general evidence of reputation. In the present case, the evidence went far beyond that and one of the defence witnesses, in

particular, was allowed to make statements of fact about the plaintiff which are quite inadmissible under this heading. Where evidence

of this kind is sought to be led, it must be tightly controlled, confined to the relevant area of the plaintiff’s life, rigidly exclude hearsay

and avoid statements of fact, unless, of course, cross-examination opens the way to their introduction.

Thirdly, much great effort must be made to ensure that the pleadings in a defamation action reflect the actual issues between the

parties. At present they are sometimes quite simply competitions in ingenuity between the advisers of the various parties. The

plaintiff may exaggerate the defamation or its consequences. The defendant often wants to say as much as possible that is

deleterious of the plaintiffs’ while not pleading justification. In order to do this, an unfortunate obliquity creeps into the pleadings,

unnecessary and irrelevant issues are raised and every effort made to ensure that the result of the trial will turn on something quite

other than the factual issue between the parties. The issue here seems to me to be as simple as could be, is what the Star said

about the Bradleys is factually correct, in whole or in part? But the argument between the parties both at the trial and even more so

on the hearing of this appeal wandered very far from this issue which, though grave, is easily stated. It is very much to be hoped

that pleadings will address the actual issue between the parties and that mere ingenuity or the introduction of unnecessary legal

issues can be avoided.

Conclusion.

I would set aside the verdict of the jury and direct a retrial on two separate grounds. The first is that the jury were wrongly told that

they could not consider a particular section of the evidence, the defendants’ evidence as to reputation, in considering the issue of

identification. The second ground is that I believe that the second publication is clearly capable of identifying the plaintiffs as the

subjects of the first article. Whether the jury accepts that it does so or not is entirely a matter for them in any retrial.