Bird v Iconic Newspapers Ltd

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 20 March 2024
• Neutral Citation: [2024] IECA 62
• Docket Number: Court of Appeal Record Number: 2023/132

Between/

William Bird

Plaintiff/Respondent

and

Iconic Newspapers Limited

Defendant/Appellant

[2024] IECA 62

Noonan J.

Binchy J.

O'Moore J.

Court of Appeal Record Number: 2023/132

High Court Record Number: 2016/5727P

THE COURT OF APPEAL

CIVIL

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 20th day of March, 2024

1 . The periodic publication of what has become known as the Tax Defaulters List has been a part of Irish life for decades. The list is scrutinised by interested members of the public, either with a sense of moral disapproval or a feeling of enormous relief or, sometimes, a combination of the two sentiments.

2 . The respondent to this appeal, Mr. Bird, is a businessman who lives in Castleconnell, County Limerick. The appellant, Iconic Newspapers, is a Dublin company which publishes a number of titles including the Limerick Leader. On the 8 ^th June, 2016, Iconic Newspapers published an article in the Limerick Leader to be carried in that newspaper's edition of the 11 ^th June, 2016. The headline read:-

“Major settlements with Revenue in Limerick”

3 . The relevant section of the article read:-

“Funfair/amusement activity operator William Bird, of Henry Street, reached three separate settlements for under declaration of corporation tax and VAT, under declaration of PAYE/PRSI and VAT, and under declaration of corporation (sic), in relation to three companies under his name.

In total, the monies paid ta the Revenue in his case amounted to €183,595.”

4 . Mr. Bird had made no such settlements with Revenue. The settlements detailed in the Limerick Leader article had been made by three different companies. These were William Bird (Rollercoaster) Limited, William Bird (Sales) Limited and William Bird Tramore Limited. Mr. Bird had nothing whatsoever to do with any of these three companies, at any time. These settlements with Revenue which gave rise to the Limerick Leader article were ones in which Mr. Bird had no involvement. The suggestion that he had personally settled with Revenue was completely erroneous.

5 . The primary defence mounted by the Limerick Leader to these proceedings was one of qualified privilege. While para. 22 of the Limerick Leader's defence claimed that the words complained of were published on an occasion of qualified privilege, and then went on to refer to s. 18 of the Defamation Act, 2009, the common law, and “the provisions of the Constitution, as interpreted in light of the provisions of the European Convention of Human Rights Act, 2003”, the central issue on the appeal was the scope and meaning of s. 18 of the Defamation Act, 2009 and in particular s. 18(2). There was also a separate secondary issue about the level of costs awarded to Mr. Bird by the trial judge, who limited these costs to those applicable to Circuit Court proceedings as the jury awarded Mr. Bird a sum within the jurisdiction of the Circuit Court (€75,000).

6 . This judgment will therefore be arranged under the following headings:-

(i) The facts of the case;

(ii) The ruling of the High Court;

(ii) The arguments on appeal;

(iv) My decision on the appeal;

(v) The costs issue;

(vi) Conclusion.

The facts of the case

7 . The edition of Iris Oifigiúil published on Tuesday 7 ^th June, 2016 carried a list of settlements with Revenue. These settlements were entered into by persons who had failed to make full or proper returns to Revenue in respect of a range of different taxes. The format of the publication is that there are eight columns. The first column gives the name of the taxpayer, the second column provides the address of the taxpayer and the third column gives the occupation of the taxpayer. The fourth column sets out the amount of tax to be paid on foot of the arrangement, the fifth column gives a figure for interest and the sixth column quantifies the penalties applicable to the individual settlement. The seventh column gives the total of the settlement, and “additional particulars” are then given in the eighth and final column. The relevant entities for the purpose of the Limerick Leader article were the three companies I have described at para. 4 of this judgment. The address for each of them is given as 97 Henry Street, Limerick. The occupation for each of them is given as:-

“Funfair/amusement activity operators”

8 . The figures for each are different, but the additional particulars given relating to these settlements make it plain that the settlements were procured on foot of a Revenue audit, and involved the under declaration of various taxes.

9 . The article in question was written by Ms. Anne Sheridan, who was at the time a journalist with the Limerick Leader. Ms. Sheridan gave evidence at the trial of the action. In her evidence, she accepted that it was a serious matter for a person to be identified as a tax defaulter, that it was a criminal offence to fail to pay taxes lawfully due, and that it would be “quite upsetting” to be incorrectly identified as a tax defaulter; p. 55 of the Transcript of Day 2.

10 . Ms. Sheridan accepted that it had been an error to identify Mr. Bird as having been somebody who had made a settlement with Revenue of the type described in the article. When asked, in her direct evidence, how this error had occurred, Ms. Sheridan replied:-

“I honestly don't know. All I can say is that I made an honest mistake when I was typing it up”; p. 35 of the Transcript for Day 2.

11 . Ms. Sheridan went on to give evidence that she “didn't have the time …” to “double check each and every aspect” of the 20 individuals listed in the article as being tax defaulters; pp. 42 and 43 of the Transcript of Day 2.

12 . Ms. Sheridan also described the way in which the Tax Defaulters List was made available to the Limerick Leader. She said:-

“On a quarterly basis Revenue would send out a list of settlements that they have reached with various individuals across the country. So, it's a national wide list. The list is sent out to all media outlets, national and media, local media, radio stations and newspapers obviously as well. It would be emailed out generally to the News Editor of various publications. It might also be sent to journalists individually as well too if they have perhaps written about Revenue stories in the past.”

This description appears at p. 21 of the Transcript of day 2.

13 . She went on to give evidence that on either the 7 ^th or 8 ^th June, 2016, at 2:40pm, the email setting out the list of Revenue defaulters was sent to the Limerick Leader from an individual in Revenue. This email was made available to Ms. Sheridan, who printed it off, analysed it, and read it to “find any references in the first instance that relate to Limerick or relate to Limerick people”; p. 28 of the Transcript of Day 2. The piece that resulted from this analysis was, according to Ms. Sheridan, “of general public interest and people are interested to see what happens in their area”; p. 29 of the Transcript.

14 . Ms. Sheridan accepted that “clearly as I am reading it now …” the relevant listings related to companies and “not to an individual”; p. 34 of the Transcript.

15 . Ms. Sheridan also gave evidence about the “considerable time pressure …” that she was under in respect of this story; p. 37 of the Transcript. Towards the end of her cross-examination, however, Ms. Sheridan accepted that the Limerick Leader as a publication “didn't scrutinise this article before it was published…”; p. 65 of the Transcript.

16 . Following publication of the article, solicitors for Mr. Bird wrote (on the 10 ^th June, 2016) complaining about the piece, setting out its defamatory meaning, and seeking within 14 days a full apology from the newspaper and proposals as to compensation to be paid to Mr. Bird in respect of the injury to his reputation occasioned by the article.

17 . There was a prompt response on the 13 ^th June, 2016 from Eugene Phelan, the news editor of the Limerick Leader. Mr. Phelan's position was a surprising one. It was that he had spoken with Ms. Sheridan, that he could not see any inaccuracy in the article, and that the “information was got from the Revenue Commissioners.”. He referred to the link from the Revenue which gave the list of tax defaulters and he said that, on clicking the link, “you will see the name William Bird, of 97 Henry Street, and the three companies associated with him in named address.”

18 . Mr. Phelan's email then set out the three companies.

19 . In this response, Mr. Phelan does not seem to have adverted to the fact that (contrary to the article his newspaper published) the settlements with Revenue were not with an individual, but rather with three companies. In addition, this email does not engage at all with the contents of Mr. Bird's solicitor's letter to the effect that he is not a tax defaulter.

20 . On the 14 ^th June, 2016 Mr. Bird's solicitors responded, stating:-

“In your email, you again repeat the inaccuracy about our client. William Bird the person, has not been identified by the Revenue, as a tax defaulter. Three entities that have been detailed have been William Bird (Rollercoaster) Limited, William Bird (Sales) Limited and William Bird Tramore Limited. If the Limerick Leader had taken the trouble to carry out Company Office searches, against these three entities (copies enclosed) it would have revealed that our client is not a director or shareholder of these companies and in fact has nothing whatsoever to do with same.”

21 . On the 28 ^th June, 2016 the solicitors for Iconic Newspapers denied that the article carried the meanings contended for by Mr. Bird's solicitors, and instead suggested the following:-

“Rather, we believe that it would have been understood to mean the three companies associated with Mr. Bird were in default and that he, on behalf of the companies, had negotiated settlements with the Revenue Commissioners.”

22 . Of course, even this meaning would have been...