O'Brien v Mirror Group Newspapers Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Keane C.J.,Hon. Mrs. Justice Denham,Mr Justice Geoghegan
• Judgment Date: 25 October 2000
• Neutral Citation: [2000] IESC 70
• Docket Number: [S.C. Nos. 289 and 301 of 1999]
• Date: 25 October 2000

O'BRIEN v. MIRROR GROUP NEWSPAPERS LTD & ORS

BETWEEN:

DENIS O'BRIEN

Plaintiff/Respondent

AND

MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN,

NEIL LESLIE AND KARL BROPHY

Defendants/Appellants

[2000] IESC 70

KEANE C.J.

DENHAM J.

MURPHY J.

GEOGHEGAN J.

O'HIGGINS J.

289/99

THE SUPREME COURT

Synopsis:

Damages

Damages; libel; newspaper article published by the defendants; jury found article libelous and assessed damages at £250,000; appeal seeking to set aside damages as excessive; whether court could depart from its earlier decision; whether guidelines should be given to juries when assessing damages for libel; whether damages were excessive.

Held: Appeal allowed; award of damages excessive and set aside; new trial ordered on the issue of damages only.

O'Brien v. Mirror Group Newspaper Ltd. - Supreme Court: Keane C.J., Denham J., Murphy J., Geoghegan J.*, O'Higgins J. (*dissenting) - 25/10/2000 - [2001] 1 IR 1

The plaintiff had been awarded substantial damages in the sum of £250,000 in respect of a libel action taken against the defendants. The defendants appealed against the size of the award on various grounds. The defendants claimed that the level of damages itself was excessive. The defendants argued that juries should receive more guidance regarding the level of damages applicable. Keane CJ, delivering the leading judgment, held that the award was disproportionately high and should be set aside. Geoghegan J delivered a dissenting judgment. The plaintiff in a cross-appeal was awarded the costs of an earlier trial.

Citations:

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

CONSTITUTION ART 40

DE ROSSA V INDEPENDENT NEWSPAPERS PLC UNREP SUPREME 30.7.1999

JOHN V MGN LTD 1996 2 AER 35

AG V RYANS CAR HIRE LTD 1965 IR 642

LONDON STREET TRAMWAYS CO V LONDON CO COUNCIL 1898 AC 375

MOGUL OF IRELAND V TIPPERARY (NORTH RIDING) CO COUNCIL 1976 IR 260

SMITH V CAVAN & MONAGHAN CO COUNCILS 1949 IR 322

MILOSLAVSKY V UNITED KINGDOM (UK) 1995 20 EHRR 442

BARRETT V INDEPENDENT NEWSPAPERS LTD 1986 IR 13

CONSTITUTION ART 40.6.1

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(2)

RANTZEN V MIRROR GROUP NEWSPAPERS (1986) LTD 1993 4 AER 975

CASSELL & CO LTD V BROOME 1972 1 AER 801, 1972 AC 1027

COURTS & LEGAL SERVICES ACT 1990 S8(2) (UK)

RSC O.59 r11(4) (UK)

MCDONAGH V NEWSGROUP NEWSPAPERS LTD UNREP SUPREME 23.11.1993 1993/13/4009

ROOKES V BARNARD 1964 AC 1129

CONWAY V IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 ILRM 497

CAMPBELL-SHARPE V INDEPENDENT NEWSPAPERS (IRL) LTD UNREP SUPREME 11.2.1998 (EX-TEMP)

CONSTITUTION ART 40.3

CONSTITUTION ART 40.6.1(i)

CONSTITUTION ART 50

CONSTITUTION ART 34.4.6

QUINN, STATE V RYAN 1965 IR 70

SUTCLIFFE V PRESSDRAM LTD 1991 1 QB 153, 1990 2 WLR 271

HYNES-O'SULLIVAN V O'DRISCOLL 1988 IR 436

NORRIS V AG 1984 IR 36

CARSON V FAIRFAX 1992-3 178 CLR 44

1 JUDGMENT delivered the 25th day of October 2000by Keane C.J.

INTRODUCTION

2 This is an action for libel. The plaintiff is a well known and successful businessman: he holds, among others, the positions of Chairman of Esat Digifone, Esat Telecom and 98 FM. The first named defendant is the publisher of a newspaper called the Irish Mirror, of which the second named defendant is the Editor in Chief. The third and fourth named defendants are respectively the editor of the Irish edition and a journalist employed by the newspaper who wrote the article which gave rise to the action.

3 The article in question appeared in the issue of the newspaper of the 10th June 1998 under the heading

"BURKE IN NEW £30,000 PROBE

EXCLUSIVE

BY KARL BROPHY."

4 It was on the front page and began as follows:

"Former Minister Ray Burke is to be investigated for a THIRD alleged payment of £30,000, the Mirror revealed today."

"The Flood Tribunal is to probe an anonymous claim that Mr. Burke received the donation from top radio boss, Denis O'Brien in1989."

"According to the confidential letter – seen by the Irish Mirror – the former Dublin North TD allegedly received a donation of £30,000 when he was Minister for Communications responsible for the allocation of radio licences in Ireland."

"Mr. O'Brien's application for a licence for a station, 98 FM, was one of the two successful tenders for the lucrative Dublin area at that time."

"Mr. Burke performed the new station's official opening in November 1989."

"No evidence has yet been uncovered to support the allegations made in the note."

"This may be a totally malicious effort to smear either Mr. Burke or Mr. O'Brien but the letter contains detailed allegations, said a top political source last night."

5 The article went on to refer to a total of eleven questions which had been sent to the plaintiff's office concerning the allegations. The plaintiff was not prepared to answer four of the questions. Of the remaining questions, four were of particular relevance to these proceedings: the questions and answers were as follows:-

"Have you, or a company in which you are involved, ever made a single donation of, or in excess of, £3,000 to Mr. RaphaelBurke?

Answer: No.

7. Did Mr. Raphael Burke, or agents on behalf of him or his political party, ever request a donation from you or a company in which you are, or were, involved? If so, how much was requested and was this request made before or after the awarding of the local radio licence to 98 FM?

Answer: No.

8. Did you ever feel that Mr. Raphael Burke, or agents on behalf of him or his political party, ever insinuated that if he made a donation to either him or his political party, the application for a radio licence for 98 FM would be favourably considered?

Answer: No."

6 The article went on to refer to the possible political implications of the allegation being made against the plaintiff and concluded:-

"Denis O'Brien, the man who is alleged to have made the latest£30,000 donation, is no stranger to political controversy. His hugely successful mobile phone company, Esat Digifone, beat off heavyinternationalcompetition to win Ireland's second mobile telephone operating licence which was awarded by disgraced former Minister Michael Lowry in 1996. "The decision on the granting of licences was taken despite the fact that no official memorandum was ever taken to the Cabinet Meeting that was chaired by then Taoiseach John Bruton."

"However, a number of investigations carried into the awarding of the licence uncovered no impropriety."

7 The article also gave details of Mr. O'Brien's career and stated that the awarding of the licence to Esat Digifone would be examined by the Tribunal of Which the sole member is Moriarty J. and which is at present investigating certain payments to politicians. It concluded, however,that

"Mr. O'Brien is confident the decision will stand after four previous investigations failed to turn up wrong doing."

8 The plaintiff thereupon instituted these proceedings claiming damages for libel and pleading that the words meant, and were understood to mean, that

9 a "(a) the plaintiff had paid a sum of money, described as£30,000, to Mr. Raphael Burke when he, Mr. Burke was a member of the ... government,

10 (b) the plaintiff paid the said money by way of a bribe to the said Mr. Burke,

11 (c) the plaintiff paid the said money for the purpose of securing benefits for himself and his business enterprises,

12 (d) the plaintiff paid the said money for the purpose of securing a licence to broadcast for a radio station known as 98FM,

13 (e) the plaintiff obtained benefits, including the said licence to broadcast, by corrupt means,

14 (f) the said radio licence was awarded to the plaintiff and his company on foot of the said alleged payment to Mr.Burke,

15 (g) the plaintiff had engaged in corrupt behaviour which warranted investigation by the tribunal established by resolution of the Houses of the Oireachtas and of which the sole member is the Honorable Mr.Justice Fergus Flood of the High Court,

16 (h) the investigation referred to in the next preceding paragraph would result in the uncovering of corrupt practices by the plaintiff on his own behalf and on behalf of his commercialcompanies,

17 (i) the plaintiff secured, or was instrumental in securing, a licence for the company, Esat Digifone, in circumstances which gave rise to suspicion of corrupt practices,

18 (j) the plaintiff was and is guilty of cirminalconduct,

19 (k) the plaintiff's conduct and behaviour warrants investigation by the appropriate legal authorities,

20 (l) the plaintiff should be prosecuted, tried and convicted of corruption and should suffer the full penalty of the law,

21 (m) the plaintiff is not fit or worthy to hold his position in the business community or the companies of which he ischairman."

22 In their defence, the defendants denied that the words complained of bore or were understood to bear or capable of bearing these meanings. They pleaded that the words complained of meant or were understood to mean that an anonymous letter had been sent to the Flood Tribunal making the allegation in question, that the Flood Tribunal would investigate the allegation and that the award of a mobile telephone licence to Esat Digifone had previously been investigated without any impropriety being found. To that extent, they pleaded that the words complained of were true in substance and in fact.

23 The action came on for hearing before McGuinness J. and a jury in the High Court. The following questions were left to the jury:

"In its natural and ordinary meaning or by way of innuendo does the article mean"

(1) that the plaintiff had paid £30,000 to Mr. Raphael Burke then a member of the Government by way of a bribe?

(2) that the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM?

...