Brendan Byrne and Paul Byrne v Radio Telefís Éireann

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice John MacMenamin
Judgment Date03 March 2006
Neutral Citation[2006] IEHC 71
Date03 March 2006
Docket Number[2003 No. 11812P]

[2006] IEHC 71

THE HIGH COURT

[No. 11812 P/2003]
BYRNE v RADIO TELEFIS EIREANN (RTE)

BETWEEN

BRENDAN BYRNE AND PAUL BYRNE
PLAINTIFFS

AND

RADIO TELEFÍS ÉIREANN
DEFENDANT

GATLEY GATLEY ON LIBEL & SLANDER 9ED 1998 26.25 FOOTNOTE 99

PRICE DEFAMATION: LAW, PROCEDURE, & PRACTICE 3ED 2004 4-03

BROWN LAW OF DEFAMATION IN CANADA 2ED 1994 20.3(1)

WATERHOUSE v STATION 2GB PTY LTD (1985) 1 NSWLR 58

LUCAS-BOX v NEWS GROUP NEWSPAPERS LTD; LUCAS-BOX v ASSOCIATED NEWSPAPERS GROUP PLC 1986 1 AER 177 1986 1 WLR 147

COONEY v BROWNE 1985 IR 185 1985 ILRM 673

MCDONAGH v SUNDAY NEWSPAPERS LTD T/A SUNDAY WORLD UNREP HIGH COURT MACKEN 10.5.2005

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

DE HAES & GIJSELS v BELGIUM 1997 25 EHRR 1

DOYLE v INDEPENDENT NEWSPAPERS (IRL) LTD & ORS 2001 4 IR 594

MOORE v AUSTRALIAN BROADCASTING CORPORATION HUNT SUPREME COURT OF NEW SOUTH WALES 5.7.1985

SIMS v WRAM 1984 1 NSWLR 317

JAMEEL v DOW JONES & CO INC 2005 EWCA CIV 75 2005 2 WLR 1614 2005 QB 946

CIVIL PROCEDURE RULES (UK)

LAZARUS v DEUTSCHE LUFTHANSA AG 1985 1 NSWLR 188

FULLAM v NEWCASTLE CHRONICLE & JOURNAL LTD & ORS 1977 3 AER 32

WILLIAMS v RADIO T2 UE SYDNEY 1 MLR 33

SHEPPERTON INVESTMENT CO LTD v CONCAST (1975) LTD UNREP HIGH COURT BARRON 21.12.1992 1993/5/1393

HUGHES v MIRROR NEWSPAPERS 1985 3 NSWLR 504

KEOGH v INCORPORATED DENTAL HOSPITAL OF IRELAND 1910 2 IR 166

GOURAUD v FITZGERALD 1888 37 WR 55 1888 5 TLR 80

BRADBURY v COOPER 1883 12 QBD 94 1883 48 JP 198 1883 32 WR 32

FANNIN & CO LTD & SURGICAL DISTRIBUTORS LTD & BRIAN DESMOND MURRAY & P KEVIN MAUGHAN UNREP SUPREME 27.2.1975

RUBBER IMPROVEMENT LTD v DAILY TELEGRAPH LTD SUB NOM LEWIS v DAILY TELEGRAPH LTD 1964 AC 234 1963 2 AER 151 1963 2 WLR 1063

WILLIAM MAHON v CELBRIDGE SPINNING CO LTD 1967 IR 1

PRACTICE AND PROCEDURE

Particulars

Defamation - Libel - Innuendo - Fair procedures - Mahon v Celbridge Spinning Co Ltd [1967] IR 1 followed - Order refused (2003/11812P - MacMenamin J - 3/3/2006)[2006] IEHC 71; [2006] 2 ILRM 375 Byrne v Radio Telefís Éireann

Facts: the defendant broadcast a television documentary about fraudulent litigation and in the course of that show, allowed the plaintiffs’ letterhead to be shown on the screen. The plaintiffs contended that this amounted to a popular innuendo that they were dishonest, guilty of filing fraudulent claims and were not fit to be solicitors. They contended that the innuendo was broadcast to a general class of persons and to particular individuals. The defendants sought that the particular persons to whom publication was made be identified by the plaintiffs.

Held by Mr Justice MacMenamin in dismissing the application that in cases of limited publication, the plaintiff was obliged to disclose the names of the persons to whom the publication was alleged to have been made. However, as the present case was a “mass media” one where publication was not to a limited class of persons, the plaintiff was entitled to rely on the natural and ordinary meaning of the matters complained of as supporting an innuendo. It was not open to the defendants to contend that the plaintiff had to elect between the general effect of imputations and the effect upon a particular class of person where there was a prima facie mass media case and publication took place to the general public on matters within the general knowledge of the community.

Reporter: P.C

Mr. Justice John MacMenamin
1

The plaintiffs (who are respondents in this application by way of notice of motion for particulars) assert that in the course of a television documentary broadcast by the defendant on 27th March, 2003, on disreputable and fraudulent personal injury claims, a Bus Éireann claims official was shown perusing a file in which a document, bearing the defendant's letterhead could be seen. Thereby the plaintiffs contend it is alleged or imputed that the plaintiffs were disreputable solicitors engaged in the facilitation of disreputable or fraudulent personal injury claims.

2

The plaintiffs through their own solicitors wrote to the defendant by letter dated the 20th June, 2003, setting out a claim for libel in respect of the broadcast. Enclosed with the said letter was a sample of the plaintiffs headed notepaper which sets out their names and in smaller lettering their avocation as solicitors practising in partnership.

3

The defendants contend that the period of time in which the notepaper in question was on view in the course of the programme was very short indeed, perhaps one second, or 25 frames in the video equipment. They contend further that the period of time in which the complete top part of the page, which bears the letterhead, was in vision, was even shorter. The length duration and visibility of the notepaper is not however a matter in issue in this notice of motion for particulars.

4

By notice for further and better particulars dated the 9th November, 2004, to the solicitors acting for the plaintiffs, the defendants sought the following particulars.

5

1. Please state whether the plaintiffs alleged publication to particular persons.

6

2. If the plaintiffs alleged publication to particular persons, identify such persons.

7

3. Identify the relationship of each such person to each of the plaintiffs.

8

4. In the case of each such person state when they:

a a. First saw the publication and,
9

b b. Identify the plaintiffs or either of them from the publication.

10

5. In the case of each such person, state those facts which caused or contributed to their identification of the plaintiffs, or either of them from the publication.

11

6. If the plaintiffs do not allege publication to specified persons, confirm that the plaintiffs will ask the court to infer publication in general by reason merely of the fact and content of the broadcast impugned.

12

By reply dated the 11th July, 2005, the solicitors acting for the plaintiffs responded as follows:

13

1. The plaintiffs allege, and it is a fact, that the defendant broadcast the programme in question to the public at large. However, the plaintiffs accept, and it is a fact, that not every person who saw the programme would have identified the plaintiffs letterhead and thereby identify the plaintiffs therefrom. The plaintiffs plead that the plaintiffs letterhead as depicted in the programme in question was a distinctive letterhead and recognisable by a wide range of persons (but clearly not everyone) who viewed the programme including existing and former clients, colleagues, persons with whom the plaintiffs firm would regularly do business including Counsel, engineers, doctors, accountants, insurers and persons with whom the plaintiffs would regularly be in correspondence, as well as the family and friends of the plaintiffs.

14

2. See reply to No. 1 above. The categories of persons who would have recognised the plaintiffs letterhead are set out at No. 1 above. The plaintiffs are obviously not in a position to name each and every member of each of such categories of persons who saw the programme and recognised the plaintiffs letterhead and indeed the request in this regard is entirely unrealistic and unreasonable. However the plaintiffs will call a number of witnesses representative of such categories who did see the programme and recognised the plaintiffs letterhead and took the offending portion of the programme to be referred to the plaintiffs.

15

3. See categories of persons set out in reply to number 1 above.

a 4. (a) On the date of this broadcast
(b) On the date of this broadcast
16

5. They will be well acquainted with the letterhead of the plaintiffs and able to easily recognise same.

17

6. The plaintiffs position has been clearly set out above.

18

By letter dated 8th August, 2005, the defendant responded to the replies dated the 11th July, 2005, making the following points:

19

1. That the plaintiffs appeared to accept that though this was a publication by an element of the mass media, the presumption of publication to the public at large is not to be made in the particular circumstances of this case.

20

2. That the defendant "accepted" that the plaintiffs are not in a position to name each and every person who recognises the plaintiffs letterhead.

21

3. That however the plaintiffs had stated their intention to call witnesses to testify specifically that they recognised the letterhead and took the offending portion of the programme to be referring to the plaintiffs.

22

4. That this statement amounted to a specific plea of publication to particular persons. That evidence of such witnesses might also be probative of a publication to a class, did not detract from the fact that in substance the evidence of those witnesses would amount to an assertion of publication to each, individually, of such persons.

23

5. That the plaintiffs seemed to be trying to "ride two horses" for the apparent purpose of refusing to identify to the defendant the persons to whom the alleged publication was made. They asserted both publication to a class and publication to specific persons and relied on the former to refuse identification of the latter.

24

6. That the defendant was not concerned, in a primary sense, to identify the plaintiffs witnesses. However it was entitled to have identified in the pleadings the persons to whom publication was made insofar as such publication is relied upon by the plaintiffs.

25

The defendants assert that what arises here is the question of identification by innuendo. They contend that the vast majority of viewers of the programme did not identify the plaintiffs as referred to therein. They suggest further that only a limited number of people who had prior knowledge of the letterhead could...

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