Coffey v Iconic Newspapers Ltd Trading as The Kilkenny People
|Mr. Justice Bernard J. Barton
|30 November 2018
| IEHC 856
|[2016 11369 P]
|30 November 2018
 IEHC 856
THE HIGH COURT
Bernard J. Barton
[2016 11369 P]
Defamation – Jury – Application to have jury discharged – Alleged breach of ruling on admissible evidence
Facts: The plaintiff alleged that he had been defamed by the defendants. In the opening of the defendants’ case, senior counsel for the defendant referred to a press release which had been used in the newspaper article. The plaintiff now applied for the discharge of the jury arguing, inter alia, that the reference to the press release breached an earlier ruling of the court on the admission of evidence.
Held by Barton J that the application would be refused. The Court was satisfied that there was nothing made out which amounted to prejudice sufficient to justify the discharging of the jury.
This is the judgment of the Court in respect of an application by the Plaintiff in defamation proceedings to have the jury discharged. Following the conclusion of the Plaintiff's case the Defendants exercised the right to open their case to the jury. In the course of his address outlining the nature of the Defence's case and the defences upon which his clients intended to rely, senior counsel for the Defendants, Mr Fanning, referred to a press release dated the 8th January, 2016 which had been drafted on behalf of John Paul Phelan TD by a public relations consultant, Neans McSweeney. She sent the press release by via email to the deputy editor of the first Defendant, Sean Keane. The press release was referred to and utilised in an article published by the Defendants in the Kilkenny People newspaper, the subject matter of these proceedings. The jury were informed that it was intended to call Neans McSweeney to give evidence of the intention behind the press release.
Senior Counsel for the Plaintiff, Mr. Keane, invited the Court to discharge the jury on two grounds; firstly, that Mr. Fanning had persistently and flagrantly breached a ruling of the Court on the admissibility of any evidence which went to meaning and, secondly, the jury had been prejudiced by having been informed that Ms. McSweeney was going to be called to give evidence as to intention when in truth the evidence went to meaning. The Defendants cast the application as one entirely without merit.
Mr. Fanning submitted he had been very careful to obey the rulings of the Court. Indeed, he had reminded the jury in the course of the opening that the question of meaning was entirely and exclusively a matter for them and for nobody else. In that regard, he is, of course, absolutely correct, however, he insisted that Ms. McSweeney was entitled to give evidence of intention behind the press release as approved by Mr. Phelan on the grounds that this was a separate and distinct document from the article which had been based upon it.
I took it from the submissions made on behalf of the Plaintiff to the contrary that references to intention in this context amounted to nothing more than a lightly veiled cloak for introducing evidence as to meaning of the impugned article. When reference was made in the opening of the case to the defences pleaded in Defence, however, no mention was made of a plea contained at paragraph 17 thereof that the Defendants intended to rely on the provisions of the Civil Liability Act 1961 in meeting the Plaintiff's claim. Not wanting to assume from the omission that the Defendants had abandoned the plea, I decided to enquire of Mr. Fanning what his client's intentions were in this regard. He replied that the omission was unintentional and confirmed that the Defendants intended to rely on it.
The significance of the plea in the context of the application is that if the article is found to be defamatory s.35(1) of the Civil Liability Act, 1961, while not expressly pleaded, is the provision on foot of which the Defendants intend to invite the jury to apportion fault in respect John Paul Phelan's alleged wrongdoing as the author of the press release, the Plaintiff having failed to issue proceedings against him as a concurrent wrongdoer, any such claim against him being now statute barred. In the circumstances the effect of the provision is to identify the Plaintiff for the purposes of contribution with John Paul Phelan in respect of any degree of fault apportioned to him thus making the Plaintiff responsible therefore and reducing the damages, if any, accordingly.
This provision and its legal consequences in a defamation action, indeed in any action in tort, was construed by this Court in , a decision on which the Defendants say they intend to rely in due course. Having regard to the significance of the plea in the context of this application I think it appropriate that some reference should be made to the law on the relevance or otherwise of intention on the part of the publisher since this goes to the heart of the matter in controversy.
The law is succinctly summarised by Gatley on Libel and Slander, 13th Ed. at Chap.3 para. 3.15 under the heading “Intention and Knowledge of the Publisher”, as follows:
“It is clearly established at common law that in determining the meaning of words the intention and knowledge of the publisher are immaterial. To this there was a limited exception in cases where the Defendant merely distributed the work of others. The common law exception was supplemented with considerable alteration by s.1 of the Defamation Act, 1996 (The UK Defamation Act) Furthermore, the general rule does not...
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