Browne v Tribune Newspapers Plc

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 24 November 2000
• Neutral Citation: [2000] IESC 74
• Court: Supreme Court
• Docket Number: [S.C. No. 52 of 2000]
• Date: 24 November 2000

[2000] IESC 74

THE SUPREME COURT

KEANE C.J.

DENHAM J.

GEOGHEGAN J.

52/2000

BROWNE v. TRIBUNE NEWSPAPERS PLC T/A THE SUNDAY TRIBUNE

BETWEEN:

PATRICK JOSEPH BROWNE

Plaintiff/Appellant

and

TRIBUNE NEWSPAPERS PLC. t/a THE SUNDAY TRIBUNE

Defendant/Respondent

Citations:

GATLEY ON LIBEL & SLANDER 9ED PARA 33.25

DEFAMATION ACT 1961 S26

RSC O.36 r36

PLATO FILMS LTD V SPEIDEL 1961 AC 1090

SCOTT V SAMPSON 1882 8 QBD 491

LAW REFORM COMMISSION CONSULTATION PAPER ON THE CIVIL LAW OF DEFAMATION (1991)

DEFAMATION ACT 1961 S17

JONES V STEPHEN 11 PRICE 235

GOODY V ODHAMS PRESS 1967 1 QB 333

KAVANAGH V THE LEADER 2001 1 IR 538

BOLTON V O'BRIEN 1885 16 LRI 97

REPORT OF THE FAULKS COMMITTEE ON DEFAMATION (1975) (CMND 5909) (UK)

DEFAMATION ACT 1952 S12 (UK)

Synopsis

Evidence

Evidence; defamation; libel; defendants published an article purporting to give an account of circumstances surrounding shooting incident which occurred when court order being enforced; plaintiff was detective superintendent of the garda siochána in charge of district in which incident occurred and unsuccessfully issued proceedings against defendants claiming damages for libel in the High Court; whether trial judge erred in law in permitting cross-examination by counsel for defendant on matters which were not relevant to the assessment of damages or to credit, but which could have been seriously prejudicial to plaintiff; whether trial judge adequately directed jury in relation to whether plaintiff neglected to take steps which might have averted incident; whether trial judge fully and fairly put plaintiff's case to jury; whether trial judge failed to fairly and adequately direct jury following the asking of questions by foreman prior to their retirement; whether trial judge's intervention in cross-examination by plaintiff's counsel was legitimate and had a critical effect on jury's deliberations.

Held: Appeal allowed; new trial on all issues ordered.

Browne v. Tribune Newspapers Plc. - Supreme Court: Keane C.J., Denham J., Geoghegan J. - 24/11/2000 - [2001] 1 IR 521 - [2001] 2 ILRM 424

The plaintiff, a member of An Garda Síochána, had sued in relation to a newspaper report. Evidence had been given of previous libel actions undertaken by the plaintiff. The plaintiff lost the case in the High Court and appealed against the directions of the trial judge. Keane CJ, delivering judgment, held that the trial judge had erred in law in permitting the evidence in question to be introduced. The appeal would be allowed and a re-trial ordered.

1 JUDGMENT delivered the 24th day of November 2000 by Keane C.J. [Nem diss]

The background

2 The plaintiff in this case is and was at all material times a Detective Superintendent in the Garda Siochána. On the 31st May 1998, the defendants published an article in the Sunday Tribune which purported to give an account of some of the circumstances surrounding a shooting incident which occurred when the County Registrar for Cavan, Mr. Thomas P. Owens, and two of his assistants were attempting to enforce a court order for the recovery of possession of a house in Cavan and Mr. Owens was seriously injured.

3 The article was headed:

"Gardaí warned about German man's "arsenal""

4 and went on to say that:

"Gardaí were warned that the German national who shot a sheriff and two bailiffs as they attempted to evict himself and his dying mother from a house in Cavan last year had an arsenal of weapons at his disposal."

5 The article went on to refer to a solicitor's letter, which it said had been seen by the newspaper in which he informed gardaí that the occupant of the house, Gerrit Isenborger, had "an array of firearms" in his possession and asked that his house be searched. The letter said that this had been sent by solicitors acting on behalf of the owner of the house and that after the incident the gardaí recovered five rifles, a handgun and a bayonet from the house. It also said that the owner of the house had alleged that Mr. Isenborger had blackmailed him and threatened him over the phone. The article said that Garda Headquarters had issued a short statement saying that they would not comment on the matter at this time but that a spokesman for the solicitors had confirmed that the letter had been sent and said that the gardaí had neglected and omitted to investigate the complaints in the letter and that if they had,

"the tragic death of Mr. Isenborger's mother and the permanent debilitating injury to Mr. Owens would not have occurred."

6 The article added that the spokesman for the solicitors had said that the letter had been acknowledged by the gardaí but they had refused to explain why they had never acted on it.

The proceedings in the High Court

7 The plaintiff who was, at the time of the shooting incident, the Superintendent in charge of the district in Cavan in which it occurred, issued proceedings against the defendants claiming damages for libel. It was alleged in the statement of claim that the article meant and was understood to mean inter alia

8 (a) that the plaintiff had neglected and omitted to investigate a serious complaint,

9 (b) that that neglect and his incompetence had caused the tragic death of Mr. Isenborger's mother and the permanent debilitating injury to Mr. Owens;

10 (c) that a properly made out complaint by a firm of solicitors was left without a response for a two month period; and

11 (d) that the plaintiff was unfit to hold his position in the gardaí.

12 The plaintiff claimed that these words were greatly damaging to his reputation and that he had been brought into public scandal, odium and contempt.

13 In their defence, the defendants denied that the plaintiff was identified by the article in question and also pleaded justification and fair comment.

14 The action was tried in the High Court by Kearns J. and a jury. The following questions were left to the jury

15 2 "1. Was the article true in substance and in fact?

16 2. If not, assess damages."

17 The jury answered the first question in the affirmative and, accordingly, judgment with costs was entered for the defendants.

18 The defendants have now appealed to this court seeking an order that the judgment dismissing the plaintiff's claim be set aside and directing a retrial on all issues. The grounds of appeal can be summarised as follows:

19 (a) that the learned trial judge wrongly allowed counsel for the defendant to cross-examine the plaintiff as to monies recovered by him in respect of other alleged libels which were not in respect of the same words as those complained of in the present proceedings;

20 (b) that the trial judge wrongly failed to direct the jury that the plaintiff could not as a matter of law have issued a search warrant or search order on foot of the solicitor's letter;

21 (c) that the trial judge failed adequately to put to the jury the plaintiff's case in the course of his charge to them;

22 (d) that the trial judge failed adequately to direct the jury following the asking by the foreman thereof of questions prior to the jury's retirement; and

23 (e) that the learned trial judge intervened in the cross-examination by counsel for the plaintiff of one of the witnesses at a critical juncture in such a way as to deprive the cross-examination of its proper effect thereby causing the trial to become unsatisfactory.

The first ground of appeal

24 The circumstances giving rise to the first ground of appeal are as follows. At the outset of his cross-examination of the plaintiff, counsel for the defendants referred to an answer the plaintiff had given in the course of his direct evidence, to the effect that he wanted "an apology among other things". After the plaintiff had been pressed as to what the "other things" were, the questioning continued as follows:-

"139	...you also wanted such damages as your solicitor would be able to get on your behalf, is that correct?
A.	Correct, for the loss of my good name.
140 Q.	This was as of the time when the Tribune wrote back to you in June of 1998, the thing not being a month old, that was your attitude, is that correct?
A.	But they did not offer me an apology.
141 Q.	But that was your attitude. You wanted an apology and you also wanted damages even at that stage?
A.	I would have sought damages if it was the legal advice of my solicitor, but that would have been in my mind.
142 Q.	That would have been in your mind?

A.	Yes.
143 Q.	Very good. Had you ever in fact sued before, Mr. Browne?
A.	I had.
144 Q.	For what had you sued for before?"

25 At that stage, counsel for the plaintiff intervened and indicated that he wished to raise a matter in the absence of the jury. The jury having retired, counsel submitted that, while he accepted that in any libel action it was permissible to call evidence that the plaintiff has recovered damages in respect of the same or a similar libel, it was not permissible to ask the witness whether he had sued in respect of any other matters. He said that it was a plain invitation to the jury to treat the plaintiff as a "trigger happy enthusiast for taking libel actions" and, accordingly, could be seriously prejudicial to the plaintiff, while at the same time not being relevant to any issue which they had to decide.

26 Counsel for the defendant submitted that, in the light of the opening of the case by counsel for the plaintiff in which the latter was depicted as being reluctant to sue, he was entitled to draw the attention of the jury to the fact, if it were the fact, that the plaintiff had not exhibited a similar reluctance on previous occasions. He further submitted that, in any event, he was not at that stage adducing any evidence to the jury but was simply cross-examining and that he was entitled to...