Supreme Court allows appeal against defamation verdict, holding jury verdict unsafe due to misdirection on statutory defence.

THE SUPREME COURT

Murray J.

McKechnie J.

Dunne J.

Appeal No. 260/2007

BETWEEN

MONICA LEECH

PLAINTIFF/APPELLANT

AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED

DEFENDANT/RESPONDENT

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 19th day of December, 2014 (No.2)

Introduction:

1. The plaintiff is a married mother of two children and is by occupation a self-employed communications consultant. The

defendant is the proprietor and publisher of numerous publications, including the “Irish Independent”, a newspaper with a

substantial circulation within this jurisdiction.

2. On the 17th December, 2004, the defendant published an article which related to what had occurred during the course of

a live broadcast the previous day, on RTÉ Radio, in a programme titled “Liveline”. Both the broadcast and the publication

occurred within the context of highly prominent and sustained media coverage, in the preceding few weeks, of an alleged

relationship between Mrs. Leech and a then Government Minister, Minister Cullen, giving rise to allegations that the plaintiff

indulged in sexual activity with the Minister in return for obtaining contract employment, and/or for obtaining such

employment on terms which could not objectively be explained or justified other than by reference to such relationship. On

the 10th February, 2005, she instituted defamation proceedings in the High Court which, in light of the jury’s response to

the two questions submitted, had to be dismissed. This occurred on the 28th June, 2007. It is her appeal from this order

and the jury’s verdict which is the subject matter of this judgment.

3. The article in question appeared on p. 10 of the broadsheet issue of the newspaper’s edition of the 17th December, 2004,

under the heading “Gasps and blushes as Norman turns Joe’s show into vileline”. The article reads as follows:-

“A caller to RTE’s Liveline show left radio chiefs red-faced yesterday when he made a lewd remark about

Environment Minister Martin Cullen and his controversial PR adviser Monica Leech.

During a discussion on the rights and wrongs of her appointment to the €127,775 –year-job, presenter Joe

Duffy took a call from a person who called himself Norman and who said he was from Cork and a member of

the Progressive Democrats.

Norman: “Well I think Martin Cullen has done a good job. And Monica Leech, for all we know, is not being

overpaid at all.”

Joe interjected: “Keep defending.”

Norman: “We really don’t know what she’s been doing anyway. Maybe she’s been doing other things for

him besides constituency work – maybe she’s “s….. his c…..”

Joe Duffy, immediately cutting in: “We’ll cut the line”. An advertisement break followed.

Last night, RTE said it disassociated itself from “comments made on today’s Liveline in relation to Martin

Cullen and Monica Leech and to apologise for any offence caused”.

The station said the caller in question “misrepresented himself to the programme and proceeded to make

vulgar comments that understandably caused offence to many listeners”.

The programme had immediately cut the caller off and apologised.

Mr. Duffy later apologised once more dissociating RTE from the caller’s comments.

RTE added: “As a live phone-in show, Liveline monitors all its calls and has strict procedures in place to

prevent bogus calls getting on air”.

IN the Seanad last night, the decision by the Taoiseach to order an inquiry into Ms. Leech’s appointment

was welcomed by Fine Gael Senator Michael Finucane.

He said the current publicity surrounding the matter was not helpful to the Minister and the ongoing drip-

feed of information in relation to the consultant appointment was damaging to politics. The Taoiseach in

ordering an investigation into the Monica Leech controversy, is anxious anything he does is not in

contravention of any probe which the Standards of Public Office (SIPO) Commission may undertake.

Labour leader Pat Rabbitte raised the question in the Dail on Tuesday.”

4. The proceedings alleged that the article in its natural and ordinary meaning meant and was understood to mean that the

plaintiff, as a married woman, had an adulterous sexual relationship with Minister Cullen, including having oral sex with

him, in return for obtaining a well paid and beneficial contract of employment, and further, that the substance of the

allegation, as so described, was true, as RTÉ had apologised only for the lewd, crude, blue and vulgar tone of the

allegations as made. By reason of the defendant’s publication it was claimed that the plaintiff had been devastated, had

been shunned and avoided, had been exposed to public scandal and contempt, had suffered acute embarrassment and

hurt to her feelings and overall had been gravely damaged in her character and reputation. She sought damages therefor,

including aggravated and/or exemplary damages.

5. The amended defence made three pleas. Firstly, that the published material in its natural and ordinary meaning, but not

in the meanings pleaded by the plaintiff, was true in substance and in fact in that:-

(b) The conversation described in the article did take place and the presenter reacted and made the

statement as described, with the balance of the article also being true.

(b) The caller to the programme had made offensive remarks about the plaintiff and Minister Cullen, and

that the presenter had immediately apologised for and disassociated RTE and the show from such

remarks.

In support of this plea, it was further indicated that reliance would also be placed on the other matters of fact as set out in

the article. A plea of both fair comment and qualified privilege then followed. Finally, it was denied that the plaintiff’s

character had in any way been damaged or that she was otherwise entitled to compensation on any of the levels as

claimed.

6. As supplemented by multiple requests for and replies to particulars, the case opened before Charleton J. and a jury on

the 26th June, 2007. Throughout the trial several issues were canvassed which called for various rulings by the trial judge

in the absence of the jury. Eventually the issue paper posed the following two questions for consideration:-

“1. Did the article of Friday the 17th December, 2004, published by the defendant bear the following

meanings arrived at?

(a) that the plaintiff, a married woman, had had adulterous sexual relations with Minister Martin

Cullen,

(please answer “yes” or “no”)... ____________

(b) that the plaintiff, a married woman, had performed deeply intimate sexual favours, namely

oral sex, for Minister Martin Cullen for the sake of a well paid and beneficial contract,

(please answer “yes” or “no”) ____________”

The paper went on to say that if the answer to either 1(a) or 1(b) was yes, then the jury was to assess damages. As it

turned out, the jury answered both questions 1(a) and 1(b) in the negative. Accordingly, the trial judge was obliged to

dismiss the action, which he did in light of those findings.

7. A Notice of Appeal was filed on the 6th September, 2007, containing in all 37 grounds of appeal. I propose to concentrate

on the following:-

(a) The judge’s charge to the jury;

(b) The judge’s explanation regarding the word “meaning”;

(c) The judge’s refusal to discharge the jury when requested to so do;

(d) The positioning of s. 26 of the Defamation Act 1961 relative to evidence of prior compensation; and

(e) The deferral of certain rulings during the course of the trial.

The reason for this limited approach becomes clear by reason of the order which I propose at the conclusion of this

judgment.

The RTE Proceedings:

8. The plaintiff had separately instituted proceedings against RTE arising out of the broadcast in which she alleged that the

meaning of the words broadcast by RTE was that as a married woman she had engaged in an adulterous relationship with

Minister Martin Cullen, and that she had performed deeply intimate sexual favours, namely oral sex, for the Minister for the

sake of a well paid job. In May, 2007 this action was compromised and settled on the basis of RTE reading an apology to the

Court and agreeing to pay the plaintiff the sum of €250,000 in damages and her costs to be taxed in default of agreement.

Issues (a), (b) and (c):

Charge/Requisitions/Jury’s Question/Explanation/Failure to Discharge

9. After a lengthy and detailed charge to the jury, counsel on behalf of both parties raised a number of requisitions arising

therefrom. The jury originally retired at 4.28pm on the 27th June, 2007, and, having been recharged, retired again to

consider its verdict at 4.31pm.

10. At some point in time, which the judge described as being “close enough to 5.30”, but which the transcript should have,

but did not record, the jury returned with a question. Having told the jury that they would not be held prisoner and that

they could cease their deliberations then or continue until, say, 6.00pm, if they wished, the foreman indicated that they

would continue for a while more and when 6.30pm was suggested, he stated “Hopefully we will be able to come up with

something before that. We have not been able to agree yet. We have questions. What does ‘bear the meaning’ mean?”

11. The following engagement then followed:-

“Judge: Bear the meaning?

Foreman: What does ‘bear the meaning’ mean?

Judge: Alright, that is fine I understand that. Bear the meaning simply means ‘means’. That is all it means.

Foreman: Does it mean?

Judge: Yes, does it mean? It does not have any term of art. If there is an article and you are asked a

question, does the article bear the meaning that the plaintiff is a murderer, then the issue, on reading the

article as a whole, is it saying the plaintiff is a murderer? That is “does it mean” yes.

Foreman: It is not could it bear the meaning to carry an inference?

Judge: Inference has not been mentioned in this case, but inference is a fact in the same way, it is within

the scope of your duty to find facts and I do not think that you should get hung up as to the difference

between inference and facts. A fact is that something happened. An inference that you can draw from a

fact is that by reason of the existence of one fact, you conclude another fact happened. The example that I

give you is that if you see your child in the kitchen and he or she comes in crying at three or four years of

age and they have skinned knees, you are entitled to infer from that, that this child has fallen and skinned

its knees. You do not have to look for weird explanations in relation to matters. In other words, an

inference is a fact from which you can deduce or conclude that another fact exists. Now both facts and

inferences from facts are within your province. By ‘bear the meaning’, it means ‘does it mean?’ That is all.

Foreman: That is okay.

Judge: Does that cause you a difficulty?

Foreman: No, alright. Thank you.”

For clarity it should be noted that the question underlined was not in fact asked by the foreman but rather by a jury

member.

10. This exchange gave rise to an immediate and significant objection taken by counsel on behalf of the plaintiff, who

opened his remarks by saying that he was seriously concerned about what the jury had been informed. In his submission,

the judge’s response, regarding inferences, was related to a situation arising in the context of circumstantial evidence,

which bore no relationship to the question which the juror had truly asked. It was said that this misunderstanding was

unfortunately compounded by the judge repeating the words “By ‘bear the meaning’, it means ‘does it mean?’ That is all”.

In immediately pressing for a correction, counsel quoted paras. 3.15 and 3.16 of Gatley, Libel and Slander 10th Ed.

(“Gatley”), which makes it clear that any belief on the part of the jury that they were confined to the literal meaning of the

words in an article could be a serious disadvantage to the plaintiff. Having seen the passages and considered the

submissions as made, the learned trial judge agreed to recall the jury and to direct them to this effect.

11. On being recalled, although the transcript does not record what happened, the following is accepted to have occurred:

the jury appeared in their coats and when the judge began to tell them how confused they would be if he began reciting the

above passages from Gatley, he was interrupted by the foreman, who told him “We have actually made a decision”. In

response the trial judge stated:-

“Yes. Can I just ask you to listen to this and go back and consider your decision. You have not been asked

as yet for your decision, I am taking it that there is no decision. It is this: sometimes the meaning can be

absolutely clear as where the article says, so and so is a murderer and sometimes where an ordinary

person reading the article as a whole would take from it or would infer that the plaintiff is a murderer. That

is the allegation. Those things constitute the meaning of the article. What is specifically stated and what

an ordinary person reading it as a whole will take from it. Now that is the best I can do in relation to that.

Would you like to go back briefly, please, I am asking you to go back and then come back, if necessary, in

five minutes and give us your decision.”

12. Immediately, counsel on behalf of Mrs. Leech sought to have the jury discharged on the basis that the original charge,

in the context of first explanation of the phrase ‘bear the meaning’, was incorrect and that such was so acknowledged by

the trial judge, as verified by his agreement to redirect the jury on the point; however, prior to having an opportunity to do

so, the jury had reached their verdict on the basis of the original direction. This situation in counsel’s view was incapable of

remedy, certainly in the circumstances then presenting. The trial judge rejected this request and received the jury’s

verdict virtually immediately thereafter. Their decision, as above outlined, was to answer both submitted questions

against Mrs. Leech.

13. The appellant submits that as a result of these events, the trial must be considered as unsatisfactory, as it also must

be given that the attempted redirection on the issue was also erroneous.

14. In support of this ground of appeal, it is submitted that the issue in question should be resolved by the application of

the well known principles regarding pre-judgment or perceived bias. Whilst these are well established and have frequently

been applied, the issue of “effective bias” in a jury is rather novel, but it has been considered by the Court of Criminal

Appeal in The People (DPP) v. Tobin [2001] 3 I.R. 469, where, in the Court’s judgment, the correct test was one of

“reasonable apprehension”. So approached, it is claimed that a reasonable person standing in the shadow of the

plaintiff/appellant would justifiably have such an apprehension in the circumstances herein described.

15. The defendant/respondent alleges that this contention is misconceived both in fact and in law. Firstly, the facts, as set

out previously, disclose that when the judge agreed “to recharge” the jury on the question of meaning, he did so not by

way of correction, but rather by way of giving a fuller explanation for what he had already told them. There was thus

nothing erroneous about his original charge on this matter. Secondly, the trial judge, in the circumstances which he then

faced, specifically asked the foreman and the other members of the jury to again retire and consider their verdict in light of

the recharge. It is therefore entirely wrong to suggest that the jury’s verdict was reached before the issue in question had

been clarified to them. In such circumstances, bearing in mind what the Supreme Court said in Dawson v. Irish Brokers

Association [1998] I.E.S.C. 39, about the undesirability of discharging a jury save in extreme cases, the trial judge was

perfectly correct in refusing to do so as the situation envisaged in Dawson did not apply in the instant case.

16. The factual situation on this aspect of the case is most revealing. Assuming for a moment that the agreement of the

trial judge to recharge the jury was necessary so as to correct his original charge, it is clear from the transcript that before

getting an opportunity to do so the jury had reached their verdict, which presumably the foreman had entered on the issue

paper. Whilst not clear from the transcript, it has not been contested but that when announcing the verdict to the Court,

the jury members had their coats on, thereby clearly indicating that in their view at least the task assigned to them had

been completed. The trial judge therefore faced a most unusual situation, which presented a serious difficulty for him. The

only way of retrieving the situation and maintaining the integrity of the process was to get the jury to discard their original

verdict, and to reconsider afresh their decision. If that could not be achieved, the only other course open would have been

to discharge the jury.

17. So, the judge asked the jury “to listen to him”, and to go back and consider afresh their decision. Having himself

decided that there had been no decision, and having given the recharge, he concluded by saying “…would you like to go

back briefly, please, I am asking you to go back and then come back, if necessary, in five minutes and give us your

decision”. Within a very short period of time thereafter the jury then returned with the verdict as above indicated.

18. It is not known and never will be as to how the jury reacted to the recharge against the background of their previously

declared verdict. They may have de novo reconsidered their decision in light of it, or they may have simply decided or

assumed that the recharge made no difference to that decision, or they may have simply given a perfunctory thought to it.

All one can do at a review, at this remove, is to infer from the circumstances what is likely to have occurred. Whilst I will

come back to the legal test in a moment, it seems to me that one possibility is that the final verdict was reached without or

in disregard of the recharge, with the other being that such recharge was meaningfully considered by them. The likelihood

of this latter scenario must be considered in the contextual setting in which this incident took place.

19. The jury had deliberated; a matter of concern arose giving rise to a question which the trial judge addressed them on;

objection was taken to what he said; he agreed with the submission made and decided to address them further; they

returned to the court for this purpose, but with a declared verdict and coats on; they were told that they had not in fact

reached a decision, were recharged and asked, if necessary for only five minutes, to retire again; within a strikingly short

period of time they returned again with the final verdict.

20. On any objective assessment of these circumstances, one thing is certain, namely that one could not be sure to any

sustainable level of probability that the recharge was fully understood by the jury, or that it was properly applied, or that

the relevant aspect of the case to which it was addressed was then re-evaluated, or that their earlier deliberations,

conducted on what was alleged if not admitted to have been an erroneous basis, had been effectively stood down and the

entire matter considered afresh. This conclusion has a direct bearing on the bias argument.

Was the Original Charge Correct?

21. The jury’s question and the judge’s answer are set out above, as are the exchanges between counsel and the judge

which followed (paras. 9, 10 and 11). The only additional passage in the transcript which might be noted is the reference by

the judge, as part of the original charge, to inferences, in which context he gave as an example that where a child skinned

his knees, one could infer that he had fallen. Clearly such is an example of one meaning of the word, which meaning is

undoubtedly what the judge had in mind, as the above passage (para. 11) shows, where he said “an inference that you

draw from a fact is that by reason of the existence of one fact, you conclude another fact happened”.

22. The question which the jury required clarification on was unrelated to the meaning of this type of inference. Rather,

their query can best be described as asking “can we read between the lines”, meaning that as fair and reasonable minded

readers of the article could they find a defamatory meaning even if such was not evident from a strict or literal meaning of

its terms. In other words, the article may infer something other than what is precisely stated on the face of it. This is quite

a different situation from proving or establishing some special fact, by reason of which a defamatory meaning can be

drawn. The latter is a plea of innuendo, whereas the former is not; such is a means by which the words, still in their

ordinary natural meaning, can also be interpreted.

23. Words generally are construed in their ordinary and natural meaning, that is, as understood by reasonable and fair-

minded people possessed of ordinary general knowledge and experienced in worldly affairs. Gatley states that “The natural

and ordinary meaning may also include implications or interferences” (para. 3.15), and the author continues at para.

3.16:-

“Ordinary Meaning and Implications

What the ordinary man would infer without special knowledge has generally been called the natural and

ordinary meaning of words, but that expression is rather misleading in that it conceals the fact that there

are two elements. Sometimes it is not necessary to go beyond the words themselves, as where the

claimant has been called a thief or a murderer, but often the sting is not so much in the words themselves

as in what the ordinary man will infer from them. And that is also regarded as part of their ordinary natural

meaning.”

The passage goes on:-

“The ordinary and natural meaning of words may be either the literal meaning or it may be implied or

inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing

beyond general knowledge but is a meaning which is capable of being detected in the language used can

be part of the ordinary natural meaning. The ordinary natural meaning may therefore include any

implication or inference which a reasonable reader guided not by any special but only by general

knowledge, and not fettered by any strict legal rules of construction, would draw from the words.”

24. This summary of the position is well supported by authority such as Jones v. Skelton [1963] 1 W.L.R. 1362 at 1370-

1371, where the Privy Council, via the judgment of Lord Morris of Borth-y-Gest, stated:-

“The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or

inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing

beyond general knowledge but is a meaning which is capable of being detected in the language used can

be a part of the ordinary and natural meaning of words.”

See also Mitchell v. Faber & Faber Limited [1998] E.M.L.R. 807, C.A.

Accordingly, I am satisfied that this is the correct legal position and that it also represents the law in this jurisdiction.

25. Consequently, it was imperative for the judge to make it clear to the jury that an implied or inferred meaning could also

be taken from the article even where no extrinsic evidence had been pleaded or established. In the absence of such

clarification, and in particular noting the jury’s question, it would be highly likely that a perfectly permissible method of

ascertaining meaning would be lost on them.

26. In fairness, it should be acknowledged that by agreeing to recharge the jury, the trial judge evidently took the view

that the scope of his earlier explanation on the question asked had been insufficient. Despite his intention, however, and

even if the intervening circumstances had not occurred, it is highly likely that even the recharge was inadequate.

Accordingly, I am satisfied that the objection taken by the appellant’s counsel to the answer given of the question asked

was well founded.

Resolution of Issue:

27. If the dispute on this appeal should be looked at on the basis that the re-charge was disregarded, it would mean that

the jury had reached a final verdict by relying on an erroneous statement of law as contained in the judge’s charge. The

point to which that aspect of the charge was addressed was a central one in the case and cannot be dismissed as being

peripheral, subsidiary or otherwise marginal. In such circumstances the issue before this Court would be no different to

many other appeals where the deciding body, whether judge alone or judge with jury, had made a fundamental decision

based on a serious error of law. The verdict in such circumstances would have to be set aside.

28. On the other hand, if the dispute should be determined based on the alternative scenario, namely that one cannot be

sure in what respect and to what level the jury considered the recharge, then one must consider this ground of appeal in

the context of the principles of bias by pre-judgment and also on the application of fair procedures.

29. The debate as to what the appropriate test is in applying the principles of apparent bias to any given case has been

ongoing for several years, but was definitively established by the Supreme Court in Bula Limited v. Tara Mines Limited

(No.6) [2000] 4 I.R. 412 (“Bula (No.6)”). The contest was between “a real likelihood” test (R. v. Gough [1993] A.C. 646)

and a “real suspicion” or “apprehension” test.

30. An essential difference between both was highlighted by Mason C.J. and McHugh J. in Webb v. R. (1993-1994) 181

C.L.R. 41 at a passage quoted at p. 79:-

“In Gough, the House of Lords rejected the need to take account of the public perception of an incident,

which raises an issue of bias except in the case of pecuniary interest. Behind this reasoning is the

assumption that public confidence in the administration of justice will be maintained because the public

will accept the conclusions of the judge. But the premise on which the decisions in this Court are based is

that public confidence in the administration of justice is more likely to be maintained if the Court adopts a

test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in

question.”

Such was quoted with approval in Bula (No.6), where in her judgment Denham J. said:-

“… it is well established that the test to be applied is objective, it is whether a reasonable person in the

circumstances would have a reasonable apprehension that the applicants would not have a fair hearing

from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges.

Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of

the reasonable person.”

This statement of principle can be taken as representing the law in this jurisdiction.

31. In The People (DPP) v. Tobin [2001] 3 I.R. 469, a case involving the prosecution of the accused person on sexual

charges, the foreman of the jury disclosed to the court that during their deliberations, a member had related a personal

experience of sexual abuse. Being satisfied to accept the jury’s assurance that such did not affect the impartiality of the

person in question, the trial judge took no further action. On appeal, however, the verdict of the jury was set aside on the

basis that there was a “reasonable apprehension” of bias.

32. Fennelly J., giving the judgment of the court, reviewed some of the authorities above mentioned and added to the

principles outlined, the celebrated expression of Lord Hewart C.J. in R. v. Sussex Justices., Ex. parte McCarthy [1924] 1 K.B.

256, where it was stated:-

“…it is not merely of some importance but is of fundamental importance that justice should not only be

done, but should manifestly and undoubtedly be seen to be done.”

Assessing the argument according to the standard of a reasonable and fair-minded observer, who knows of the relevant

facts, the Court was of the view that there was “a danger, in the sense of a possibility, that the juror might have been

unconsciously influenced by his or her personal experience and for that reason the appellant might receive a fair trial”. In

the circumstances the verdict was, as stated, set aside.

33. The hypothetical observer in this case would be reasonably familiar with the allegations alleged and the pleas asserted

in reply. He or she at a general level would have followed the issues and would have had an understanding of the

respective roles of both judge and jury and the significance of the judge having given to the jury directions which were

legally incorrect. He would understand how influential the judge would be in the jury’s mind. Following the debate between

counsel and the judge, he or she would know of the judge’s agreement to recharge the jury on this point. Being then

witness to what occurred thereafter, and what is set out above, would this fair-minded individual have a reasonable

suspicion or apprehension that the recharge was of little (or, indeed, any) value in the verdict which the jury brought in? In

my view, so framed, the question permits of only one answer.

34. I would equally come to a similar conclusion on the basis of fair procedures. Articles 34 and 40.3 of the Constitution

guarantee rights similar to the ‘due process clause’ under the U.S. Constitution. Those rights do not stop with bare access

to the courts. Once it becomes necessary for a litigant to seek redress so as to defend or vindicate his rights, including of

course the right to one’s good name, which has specific constitutional protection, then as part of the process such person

has a constitutional right to fair procedures. This right, in a jury trial, is to have jury issues determined by a body which is

unbiased in any of the several ways in which that might come about. In this case, the suggestion under this heading is that

prior to the recharge the jury had in fact determined the issue and thus the final verdict was simply a repetition of their

declared position made known earlier.

35. As is obvious, such procedures must be carried into a trial and be maintained for its duration. There is no distinction in

principle between a civil case tried with or without a jury and a criminal case in this regard. The aspect of due process

which arises in this case is the plaintiff’s right to have the jury properly instructed as to what legal principles should apply

to the defined issues intended to be left to them for their consideration. By acknowledging an intention to recharge, it can

be taken that the judge saw merit in the submission of counsel who requested the same. This step, as I will demonstrate,

was necessary so as to redress the incorrect information given to the jury in response to their question. As circumstances

arose, it was not possible to ensure that the jury obtained the benefit of the judge’s guidance in this regard to the extent

which would be required by fair procedures. I would therefore also allow the appeal on that ground and order a retrial.

Section 26 of the Defamation Act 1961

36. At common law it was not permissible for a defendant to establish as part of its mitigation plea that some third party,

on other occasions, had defamed the plaintiff by the same libel or by the publication of the facts alleged in the libel: the

reason simply was that this was considered wholly irrelevant. This could operate both ways, in that the plaintiff would get

no benefit in not having previously sued, if that was the case, and the defendant could not say to the plaintiff that he had

already obtained compensation, if that was the case (Gatley, Libel and Slander, 10th Ed. at para. 33.55). This rule could not

be circumvented by claiming that such earlier publication had damaged the plaintiff’s reputation. This was thought as being

unfair, but only in a very specific way: hence a statutory exception first introduced in s. 12 of the English Defamation Act

1952, and by s. 26 of the Irish Defamation Act 1961, which is in identical form.

37. Section 26 of the 1961 Act reads as follows:-

“In any action for libel or slander the defendant may give evidence in mitigation of damages that the

plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the

publication of words to the same effect as the words on which the action is founded, or has received or

agreed to receive compensation in respect of any such publication.”

38. Gatley points out that this amendment, although welcome, “can provide a dilemma for a defendant, for evidence of

damages already recovered, if substantial, may be treated by the jury as a benchmark for their assessment in the instant

case, and if modest, may cause them to react by awarding a much larger sum on the basis that the claimant was, in their

view, undercompensated in the earlier case”. So it would appear that its invocation is a strategic matter for a defendant

who must assess which course of action is likely to be the most beneficial for the defence.

39. In Browne v. Tribune Newspapers Plc [2001] 1 I.R. 521 (“Browne”), Keane C.J., who reviewed the legal position as it

existed prior to the statutory amendment, did so in light of a submission that the common law position was not that as

above described but rather permitted what the defendant in Browne sought to do. Having pointed out that in any event

evidence of unrelated publications could only be relevant to damages, the Chief Justice went on to explore the practical

effect on the running of a trial if either the plaintiff or the defendant had been being able to call evidence in relation to

previous proceedings.

40. At a minimum, such would involve giving a detailed explanation as to the nature of the earlier publications, the

meanings alleged to be defamatory therein, the course of the proceedings, the findings by the jury and the damages

awarded. If such an action should have concluded otherwise than by jury verdict, say, by agreement, similar details would

have to be forthcoming. In response a plaintiff would have a right not only to test the evidence as given but presumably to

call other evidence in rebuttal. This, in effect, might well compel the trial judge to conduct a virtual trial within a trial, which

would be remarkably damaging to the integrity of the instant proceedings before him. In Browne, the defendant, having

received permission from the trial judge, elicited from the plaintiff the fact that he had instituted at least four sets of

previous defamation proceedings in which he had obtained a total of about IR£80,000 in compensation. That line of

questioning, said the Chief Justice, should not have been permitted.

41. The Court then considered the statutory amendment introduced by s. 26 of the 1961 Act; at p. 535 of the report Keane

C.J. went on to say:-

“The reason for this provision is obvious. It would be clearly wrong that a jury should be required to assess

damages for a libellous publication without being aware that the plaintiff had already been compensated in

respect of virtually the same libel, although appearing in another publication. However, if it were

permissible for the defendant to adduce evidence of the institution by the plaintiff of defamation

proceedings in respect of wholly unrelated libels, which would be of significantly less relevance, then a

fortiori he should have been entitled, even in the absence of any statutory provision, to give evidence of

damages recovered in proceedings for effectively the same libel or slander. If he were so entitled, as it

claimed on behalf of the defendant in the present case, the provisions of s. 26 would seem to be entirely

superfluous.

…But it seems to me that the provision in question is a clear indication that the general accepted view of

the law at the time of the enactment of the English provision, on which s. 26 of our Act of 1961 is based,

was that such evidence was not in general admissible.”

42. This rule was part of a wider practice, established by several authorities, which did not permit cross examination of a

plaintiff as to other unrelated defamation proceedings which he may have successfully issued in the past. These authorities

are reviewed at length in Browne, where Keane C.J. was satisfied that the conclusion which he reached was fully supported

by the amendment itself.

43. Section 26 of the 1961 Act is therefore a clear exception to the position at common law in this type of action; indeed,

that position also pertains to other forms of proceedings, such as personal injuries, subject only to specific exceptions such

as where the injuries may have overlapped or an exaggerated claim is suggested. Accordingly, the general rule continues

to apply unless the section can be invoked.

44. Some debate was had in this case as to whether or not it was necessary to plead the section. I accept that it may not

have to be, in a strictly pleading sense, as there may not exist circumstances at the time when a defence is filed which

would bring the section into play. However, I have no doubt but that notification of an intention to operate the section must

be submitted to the plaintiff in ample time so that he can consider the resulting position. It would be a most unsatisfactory

situation if a defendant could, typically during the course of a trial, inform the judge of his intention to rely upon its

provisions with little or no notice to the plaintiff: litigation by surprise, even with defamation actions, is bygone.

45. Being a statutory exception to the common law situation, I am quite satisfied that the evidence which is envisaged by

the operation of this section can only be admitted in accordance with its provisions, whether these are expansive or

restrictive. For example, it is clear that it applies to a defendant only, that the tendered evidence is confined to mitigation

of damages, that earlier proceedings have issued or that damages have been recovered, and that such proceedings or

damages were “in respect of the publication of words to the same effect as the words on which the action is founded”.

(Emphasis added)

46. This becomes relevant in light of the RTE proceedings in that it is submitted on behalf of the appellant that the trial

judge was in error in permitting defence counsel to question the plaintiff in relation to such proceedings without insisting

upon the defendant also having to accept that the meaning of the broadcast in question was to the same effect as the

published article.

47. The defendant rejects this contention. It points out that as the section relates to damages only, it cannot be the case

that it must first accept that its publication is libellous before being able to refer to material which otherwise comes within

s. 26. In this case it is said that the appellant pleaded precisely the same meanings in the instant case as she had in the

RTE case. Accordingly, her cross examination by counsel dealt with the question of damages recovered by her in respect of

the publication of words to the same effect as the words in which this action was founded. On the appellant’s case the

words in both actions had precisely the same meaning. On any view, therefore, they were to the same effect. Whilst the

RTE proceedings had been compromised and thus there was no record of a finding as to meaning, the section does not

require this. Indeed, it explicitly embraces situations where compensation for an earlier libel had been obtained by

agreement. Accordingly, it is suggested that the judge was correct in the manner in which he ruled on this point.

48. Disregarding for a moment what is the precise meaning of the phrase in issue, I am satisfied that the section can

operate only in respect of such words as have the same effect as those upon which the current proceedings are founded.

This, in my view, is an essential precondition for the section’s application: how it is so established is not the issue. Rather,

it is that the previous actions or damages relate to a libel whose material is to the same effect. Unless such is established

by way of evidence or admission, it is not possible in my view for the defendant to invoke the section.

49. Like any other precondition for the reception of evidence, the trial judge must be satisfied that its terms have been met

before permitting the evidence to be adduced. This is all the more important in a jury trial. It could not be the situation that

a defendant would be permitted to conduct a cross examination, without having called evidence, in the hope or

expectation that this condition can be satisfied by admission. Such would offer no safeguard to a plaintiff and could

seriously jeopardise his position before the jury even if they were subsequently asked to disregard that evidence. This

section was designed for a limited purpose, and even then subject to conditions. Such must therefore be satisfied before

any evidence can be led or elicited or obtained.

50. In addition, could I make two further points on s. 26 of the 1961 Act. Firstly, the same words do not have to be

involved; rather the purpose of the section is that whatever words are used must have the same effect as the words

grounding the action in question. Secondly, I do not see within the section any requirement for a defendant to abandon any

defence before the section can be used. It may be that on some basis existing outside the section an inconsistency

argument may be made, but that does not stem from its provisions.

Miscellaneous Points:

51. Finally, there is one further observation which I wish to make. There cannot, I think, be any dispute but that it is no

defence for a defendant, who publishes what is otherwise a libel, to escape its consequences by simply adding a

disassociation from what is published. Secondly, likewise it is no defence, in the type of publication mentioned, for the

defendant, when repeating what otherwise is a libel, to add a comment dissociating itself from the original and repeated

libel. If, as might appear, the defendant in this action was suggesting that its repetition of RTE’s dissociation from the

comments made by the caller to Liveline meant that the article was not defamatory, the trial judge should have informed

the jury that such a dissociation was no defence.

52. Given the order which I propose, I do not think it would be appropriate to say anything further on s. 26 of the 1961 Act.

53. For the reasons above given, I am quite satisfied that the verdict of the jury must be considered as unsafe and be set

aside. Accordingly, I would allow the appeal.