Alan Bradley v Independent Star Newspapers Ltd and Wayne Bradley v Independent Star Newspapers Ltd

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Hardiman,Mr. Justice Fennelly
Judgment Date01 June 2011
Neutral Citation[2011] IESC 17
Date01 June 2011
Docket Number[S.C. Nos. 275 and 277

[2011] IESC 17

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Macken J.

275/2006
Appeal No. 277/2006
Bradley v Independent Star Newspapers Ltd

Between:

ALAN BRADLEY
Plaintiff/Appellant

and

INDEPENDENT STAR NEWSPAPERS LIMITED
Defendant/Respondent

and

Between:

WAYNE BRADLEY
Plaintiff/Appellant

and

INDEPENDENT NEWSPAPERS LIMITED
Defendant/Respondent
WAYNE BRADLEY

AND

INDEPENDENT STAR NEWSPAPERS LIMITED

RSC O.36 r36

RSC O.58 r7(2)

GATLEY ON LIBEL & SLANDER 1981 8ED PARA 1308

GATLEY ON LIBEL & SLANDER 1981 10ED 2004 PARA 32.19

GRAPPELLI & ANOR v DEREK BLOCK (HOLDINGS) LTD 1981 1 WLR 822

HAYWARD v THOMPSON & ORS 1981 3 WLR 470

WHITE v SAYWARD 1851 33 MAINE R 322

MISIR & METRO ORTHOPEDIC & REHABILITATION CENTRE INC v TORONTO STAR NEWSPAPERS LTD 1997 105 OAC 270

LIBEL & SLANDER ACT 1990 S5(1) (CANADA)

JOZWIAK v SADEK & ORS 1954 1 WLR 275

DU BOST v BERESFORD 1810 2 CAMP 511

COOK v WARD 1830 6 BING 409

FULLAM v ASSOCIATED NEWSPAPERS 1953-4 IRISH JUR REP 70

HULTON v JONES 1910 AC 20

YOUSSUPOFF v METRO -GOLDWYN-MAYER 1933 50 TLR 581

NEWSTEAD v LONDON EXPRESS NEWSPAPERS 1940 1 KB 377

MCMAHON & BINCHY IRISH LAW OF TORTS DUBLIN 2000 PAR 34.111-34.114

DEFAMATION ACT 1961 S21

LAW REFORM CONSULTATION PAPER CIVIL LAW OF DEFAMATION MAR 1991

SCOTT v SAMPSON 1882 8 QBD 491

HOBBS v CT TINLING & CO LTD 1929 2 KB 1

PLATO FILMS v SPIEDEL 1961 AC 1090

ASSOCIATED NEWSPAPRERS v DINGLE 1964 AC 371

MURPHY v TIMES NEWSPAPERS 1996 1 IR 169

DEFAMATION

Identification

Evidence - Newspaper article - Reputation evidence ruled inadmissible on question of identification - Appeal - Whether article published of and concerning plaintiffs - Whether jury entitled to have regard to reputation evidence when considering identification issue - Whether substantial wrong or miscarriage of justice - Whether subsequent article referring to first article and naming plaintiffs admissible - Whether evidence of witness that other people identified plaintiffs from article admissible - Hayward v Thompson [1982] 1 QB 47, Misir v Toronto Star Newspapers Ltd. (1997) 105 OAC 270 and White v Sayward (1851) 33 Me 322 followed; Grappelli v Derek Block Ltd [1981] 1 WLR 822 and Simons Proprietary Ltd v Riddle [1941] NZLR 913 distinguished; Fullam v Associated Newspapers Ltd [1953- 54] Ir Jur Rep 70, Jozwiak v Sadek and others [1954] 1 WLR 275, Du Bost v Beresford (1810) 2 Camp 511 and Cook v Ward (1830) 2 CPD 255 followed - Rules of the Superior Courts 1986 (SI 15), O 36, r 36 and O 58, r 7(2) - Plaintiffs' appeal allowed, retrial ordered (275 & 277/2006 - SC - 1/6/2011) [2011] IESC 17

Bradley v Independent Star Newspapers Ltd

Facts The appellants in both sets of proceedings lost their claims for damages for libel in the High Court because the jury found that they were not identified in the newspaper article. The article in question was published in a newspaper published by the respondent and alleged highly serious organised criminality against two unnamed "Brothers in Arms", accompanied by two digitally disguised photographs captioned 'The Fat Heads". In a later article, published after the appellants had sued, the respondents revealed that the original article did in fact refer to the appellants. Separate proceedings were issued in respect of that second article. The learned trial Judge, based on the pleadings, ruled out any plea of justification. However, prior to the trial of the action in the High Court the respondent had served a notice under Order 36, Rule 36 of the Rules of the Superior Courts regarding evidence in mitigation of damages. Before returning a verdict in the High Court, the jury had asked the learned trial judge a direct question as to whether or not they could make use of the "reputation" evidence led by the respondent in deciding whether the article identified the appellants. The learned trial judge told them that they could not. However, shortly thereafter, having heard argument from counsel, the judge apparently changed her mind regarding the answer she had given but did not convey this to the jury. The learned trial judge also excluded from the jury the evidence of one witness (who knew the appellants and had read the article) to the effect that others had told her about the article and that it was about the appellants and the judge excluded from the jury's consideration evidence of the subsequent article, which identified the appellants. The appellants claim that the learned trial judge erred in making all of those rulings and further that she erred in admitting evidence called by the respondent in mitigation of damage from Garda witnesses of the appellants' general bad reputation.

Held by the Supreme Court; Fennelly J. (Murray C.J., Denham, Macken JJ) in allowing the appeal, setting aside the High Court Order and ordering a retrial: That the learned trial judge's ruling regarding the admissibility of the witness's evidence of identification was unduly narrow. Once that witness was permitted to say that people had said something which caused her to buy the newspaper, she ought to have been allowed to give evidence of the fact that those people identified the plaintiffs as the persons named in the article. The learned trial judge also erred in excluding the second article published by the respondent. That article constituted a more or less explicit republication and reference back to the first article and it referred to the solicitor's letter from the appellants complaining about the first article. Furthermore, the learned trial judge erred in telling the jury that they could not consider the reputation evidence when deciding whether the appellants were identified in the article complained of. Evidence of bad reputation was, in principle, admissible and there was no requirement that the witness knew the appellants personally, provided they knew them by reputation. Evidence of rumour or hearsay was, in principle, inadmissible. Some of the Garda evidence given herein was opinion evidence only.

Per Hardiman J. : A substantial wrong or miscarriage occurred in this case. The appellants were entitled to have the question of identification addressed on the basis of all the evidence in the case and that did not occur. Both the reputation evidence and the second published article should have been admitted and considered for the purposes of determining the identification of the appellants in this case.

Reporter: L.O'S.

1

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

2

Judgment delivered by Hardiman J. - Murray C.J., Denham J. & Macken J. concurring

Background.
3

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.

4

On the 13 th 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".

5

Underneath that in very large letters, were the words:

6

BROTHERS IN ARMS.

7

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:

8

THE FAT HEADS

9

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.

10

Another headline read:

11

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

12

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:

13

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

14

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."

15

The Criminal Assets Bureau is also investigating their substantial wealth.

16

The pair each have a string of criminal convictions.

17

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

18

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:

19

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

20

· 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

21

·£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

22

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

23

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

24

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

25

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

26

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

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