Chris Gordon v The Irish Racehorse Trainers Association
| Jurisdiction | Ireland |
| Judge | Mr. Justice Murray |
| Judgment Date | 27 April 2021 |
| Neutral Citation | [2021] IECA 128 |
| Date | 27 April 2021 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 2020/224 |
[2021] IECA 128
Murray J.
Court of Appeal Record No. 2020/224
High Court Record No. 2015/1418 P
THE COURT OF APPEAL
CIVIL
Security for costs – Defamation – Damages – Respondent seeking security for the costs of the appeal – Whether there were special circumstances within the meaning of Order 86 Rule 9 of the Rules of the Superior Courts
Facts: The plaintiff/respondent, Mr Gordon, sought damages for defamation. In respect of five of the seven alleged publications grounding the action, his claim was met with a defence of qualified privilege. The matter came for hearing before Barton J and a jury on 4 February 2020. In the course of the trial, the claim in respect of one of the allegedly privileged publications was withdrawn from the jury by direction of the trial judge ([2020] IEHC 425). Following a hearing lasting thirty days, the jury found that the remaining six publications were defamatory of the plaintiff and that in the case of four of the five remaining statements in respect of which a plea of qualified privilege was advanced, that malice was proved. It awarded the plaintiff damages of €300,000, comprising general damages of €200,000, aggravated damages of €50,000 and exemplary damages of €50,000. The defendant/appellant, the Irish Racehorse Trainers Association, appealed to the Court of Appeal against this decision, certain rulings made in the course of the trial and the subsequent judgment of Barton J ordering the defendant to pay the plaintiff’s costs of the action in full ([2020] IEHC 446). The plaintiff sought security for the costs of the appeal.
Held by Murray J that the plaintiff’s application for security for the costs of this appeal should be refused. Murray J held that, it being accepted that if the defendant did not prevail in its appeal it would not be in a position to discharge the plaintiff’s costs thereof, the court may only direct such security if satisfied that there are special circumstances within the meaning of Order 86 Rule 9 of the Rules of the Superior Courts. Insofar as the plaintiff relied upon the fact that these were defamation proceedings, the merits of the case, the conduct of the defendant, the fact that the defendant was a body corporate, or the positions adopted by the defendant as to the consequences of its being a company limited by guarantee, Murray J held that these were not ‘special circumstances’ within the meaning of the relevant rule. The defendant had contended that if security was ordered against it, this would preclude it from proceeding with its appeal. Murray J held that, even assuming that the onus in an application of this kind is on an appellant to establish that security will stifle its appeal, the evidence it had adduced in this case was sufficient to discharge that onus. Murray J held that the defendant had not established that these proceedings involved an issue of law of public importance such as to preclude the plaintiff from obtaining security were he otherwise entitled to such security.
Murray J held that in the circumstances of this application it was appropriate to reserve the costs of this motion to the appeal. He believed that having regard to the defendant’s admitted impecuniosity and its insistence up to the point of the delivery of written legal submissions in this case that its liability was limited to the amount of its guarantee, the plaintiff was justified in persisting with this application and it thus seemed appropriate that the allocation of costs of this application should be addressed at the conclusion of the substantive appeal.
Application refused.
JUDGMENT of Mr. Justice Murray dated the 27 th day of April 2021
. In these proceedings the plaintiff seeks damages for defamation. In respect of five of the seven alleged publications grounding the action, his claim was met with a defence of qualified privilege. The matter came for hearing before Barton J. and a jury on February 4 2020. In the course of the trial, the claim in respect of one of the allegedly privileged publications was withdrawn from the jury by direction of the trial judge ( [2020] IEHC 425). Following a hearing lasting thirty days, the jury found that the remaining six publications were defamatory of the plaintiff and that in the case of four of the five remaining statements in respect of which a plea of qualified privilege was advanced, that malice was proved. It awarded the plaintiff damages of €300,000, comprising general damages of €200,000, aggravated damages of €50,000 and exemplary damages of €50,000. The defendant has appealed this decision, certain rulings made in the course of the trial and the subsequent judgment of Barton J. ordering the defendant to pay the plaintiff's costs of the action in full ( [2020] IEHC 446). The plaintiff now seeks security for the costs of the appeal.
. The plaintiff is the head of security at the Irish Horse Racing Regulatory Board (the ‘ IHRB’, previously known as the Turf Club). His role includes the investigation of the use of anabolic steroids and breaches of the rules of horseracing within that industry. The defendant (a company limited by guarantee) is the representative body for racehorse trainers. The plaintiff's essential case was that the allegedly defamatory statements were made in the course of a campaign against him orchestrated by the defendant. He said that the object of this campaign was to have him removed from his post as head of security of the IHRB, and that each of the alleged statements presented him as a wholly dishonest individual who should not have been permitted to hold the position he did in that organisation.
. Of the six alleged defamations considered by the jury two (alleged defamations one and two) arose from instructions given by the defendant to its solicitor and/or in authorising him to send a letter to a Neville O'Byrne, one (alleged defamation three) arose from statements ascribed to Noel Meade (then chairman of the defendant) contained in an article in a newspaper, the Irish Field, one (the fifth alleged defamation) arose from the repetition of allegations made by a Liz Doyle and Avril Doyle to senior members of the Turf Club at a meeting at a hotel in Newbridge and two (the sixth and seventh alleged defamations) were alleged to have been made by Michael Grassick (the Chief Executive of the defendant) to a Denis Egan. The latter concerned complaints received from two trainers, a Mr. McGuinness and a Mr. Flood.
. In the case of the first, second and fifth publications the defendant was found by the jury to have published the words having no honest belief in their truth. In the case of the sixth alleged defamation, the speaker was found to have acted in bad faith and for the purposes of injuring the plaintiff. The jury answered a specific question on the issue paper to the effect that some of the publications were made maliciously and knowing the words to be false or reckless as to whether or not they were true, and that those publications constituted an ‘ orchestrated and severe campaign’ by the defendant against the plaintiff's good name.
. The essential grounds of appeal on the merits (there being separate complaints made in relation to the costs ruling) are this:
(i) The judge erred in refusing the defendant's application to have the Irish Field publication withdrawn from the jury ( [2020] IEHC 425) and/or that the jury erred in finding that the defendant was liable for the comments of Mr. Meade in giving an interview to that newspaper and/or the judge erred in relation to the wording on the issue paper in relation to the Irish Field publication.
(ii) The judge erred in in allowing the fifth alleged defamation to go to the jury (because inter alia there was no evidence of the defendant having said anything possibly defamatory at that meeting) and/or erred in allowing the alleged defamations alleged to have been made at that meeting to go the jury in circumstances in which (it is said) inter alia that no specific words were pleaded in relation to those alleged defamations.
(iii) The judge erred in his decision ( [2020] IEHC 425) not to withdraw the entire case, or more of the case than he did, from the jury. Here the defendant alleges the trial judge erred in his conclusions with regard to the fifth defamation insofar as he held that the defendant adopted without question the beliefs of the Doyles, was wrong in his treatment of malice and erred in concluding that the sixth and seventh defamations were interrelated and interconnected, and in failing to withdraw the fifth, sixth and seventh alleged defamations from the jury on the basis that no specific words were pleaded in relation to them.
(iv) The jury inappropriately heard evidence and were given documentation that comprised hearsay with prejudicial remarks thereby giving rise to a real risk of contaminating the jury's consideration of the case and/or which rendered the verdict unsafe.
(v) The judge erred in his charge to the jury in inter alia failing to explain to them the onus that lies on a party claiming malice, regarding the alleged fault on the part of the plaintiff and regarding the matter of damages.
(vi) The jury erred in its verdict inter alia because the award was not proportionate and/or there was no basis for awards of aggravated or exemplary damages.
(vii) The judge erred in constraining questioning by the defendant's representatives or in constraining evidence led by the defendant.
(viii) The judge erred in failing to adjourn or to abandon the trial having regard to the lockdown arising from the COVID-19 pandemic announced on March 12.
. While the application for security for the costs of the appeal was brought under two provisions, it is accepted...
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