Cooper-Flynn v Raidió Teilifís Éireann

• Jurisdiction: Ireland
• Judge: Keane C.J.,Denham J.,McGuinness J.,Geoghegan J.,FENNELLY J.
• Judgment Date: 28 April 2004
• Neutral Citation: [2004] IESC 27
• Court: Supreme Court
• Docket Number: [1998 No. 8110 P; S.C. No. 124 of 2001]
• Date: 28 April 2004

COOPER-FLYNN v. RADIO TELEFÍS ÉIREANN (RTE) & BIRD & HOWARD

BETWEEN

BEVERLY COOPER-FLYNN

PLAINTIFF/APPELLANT

AND

RADIO TELEFÍS ÉIREANN, CHARLIE BIRD ANDJAMES HOWARD

DEFENDANTS/RESPONDENTS

[2004] IESC 27

Keane C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

124/01

THE SUPREME COURT

Synopsis:

- [2004] 2 IR 82

The plaintiff sought by way of appeal an order directing a new trial of the proceedings and an order setting aside the order of costs in favour of the third named defendant on the grounds that the learned trial judge erred in law and in fact in allowing the defendants to introduce into evidence and cross-examine the plaintiff on a document which was inadmissible as hearsay evidence and further the trial judge erred in law and in fact in failing properly or adequately to direct the jury on the issue of majority voting having regard to the questions put to it. The plaintiff also submitted that the trial judge erred in his formulation of the questions put to the jury and erred in giving a second charge to the jury.

Held by the Supreme Court (Keane C.J., Denham, McGuinness, Geoghegan, Fennelly JJ) in dismissing the appeal: 1. That the document was properly admitted in evidence as it was not tendered as evidence of the truth of its contents. It was no more than written confirmation of oral evidence, which its author gave on oath in the witness box.

Fennelly J. ruled that the document was improperly admitted into evidence but did not think any miscarriage had resulted from the admission of this evidence.

2. That it had not been demonstrated that any anomalous or inappropriate consequence could have resulted from judge's direction to the jury. Furthermore the directions of the trial judge were acquiesced in without reservation by the plaintiff at the trial and accordingly, in the absence of any evidence of a substantial miscarriage a new trial should not be ordered.

3. That if the failure by the trial judge to frame the questions in the manner proposed by the plaintiff constituted a misdirection by the trial judge, there was in the result no substantial wrong or miscarriage in the trial. Furthermore the trial judge was entitled, if he thought it appropriate, to give further directions to the jury.

4. That there was no ground for interfering with the exercise by the trial judge of his discretion as to costs.

Reporter: L.O'S.

Citations:

DEFAMATION ACT 1961 S22

ARCHBOLD CRIMINAL PLEADING, EVIDENCE & PRACTICE 2003

R V GILLESPIE & ANOR 51 CAR 172

R V MORRIS CROSS 91 CAR 115

MOLONEY V JURY'S HOTEL LTD UNREP SUPREME 12.11.1999 1999/18/5606

PLATO FILMS LTD V SPEIDEL 1961 AC 1090

BROWNE V TRIBUNE NEWPAPERS PLC T/A SUNDAY TRIBUNE 2001 1 IR 521 2001 2 ILRM 424 2000/3/856

SCOTT V SAMPSON 1882 8 QBD 491

GROBBELAAR V NEWSGROUP NEWSPAPERS LTD 2002 4 AER 732

KELLY V BOARD OF GOVERNORS OF ST LAURENCES HOSPITAL 1988 IR 402

COURTS OF JUSTICE ACT 1924 S95

ARNOTT V O'KEEFFE 1977 IR 1

BENNETT V GUARDIAN NEWSPAPERS UNREP CA 8.7.1998 1998 EWCA CIV 1178

KIELTY V ASCON LTD 1970 IR 122

RSC O.58 r7(2)

RSC O.36 r36

KAVANAGH V THE LEADER 2001 1 IR 538

BOLTON V O'BRIEN 1885 16 LR IR 97

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

PAMPLIN V EXPESS NEWSPAPERS 1988 1 WLR 116

RSC O.99 r1(3)

ROACHE V NEWSGROUP NEWSPAPERS LTD 1998 EMLR 161

REYNOLDS V TIMES NEWSPAPERS LTD 1998 3 AER 961

DPP V RYAN 3 FREWEN 107 1986/2/577

QUIGLEY V CREATION LTD 1971 IR 269

GATLEY ON LIBEL & SLANDER 10ED 1065

LIM V LAWLESS UNREP 19.6.1991 CA CIV (UK)

DEFAMATION ACT 1961 S5

SUTHERLAND V STOPES 1925 AC 47

HALSBURY THE LAWS OF ENGLAND 1ED VOL 18 257

THE LAW OF EVIDENCE IN IRELAND FENNELL 2ED 255

CRIMINAL PROCEDURE ACT 1965 S4

R V SEHAM YOUSRY 11 CAR 13

BANKERS BOOKS EVIDENCE ACT 1879

LAW REFORM COMMISSION REPORT ON HEARSAY (1988)

CIVIL EVIDENCE ACT 1968 (UK)

R V COLL 24 LR IR 522

PHIBSON ON EVIDENCE 14ED

1 28th day of April,2004,by Keane C.J.

Keane C.J.

Introduction

2 This is an action for libel. It arises out of six television broadcastsby the defendants (hereafter "RTÉ") between19 ^th June and 1 ^st July, 1998. In those broadcasts,it was alleged that the plaintiff/appellant (hereafter "theplaintiff"), a Dáil Deputy, when a member of the investmentstaff of National Irish Bank (hereafter "NIB"), had adviseda retired farmer, not originally named, not to avail of the tax amnestyavailable at the time totaxpayers in default but to invest the monies in a scheme in the Isle ofMan which would conceal its existence from the revenue authorities inthis jurisdiction. The allegation was made in the course of newsbroadcasts and by the farmer concerned in interviews with the secondnamed defendant. The retired farmer in question was identified as thethird named defendant (hereafter "Mr. Howard") in abroadcast on 1 ^st July, 1998. The broadcast reported a denialby the plaintiff that she had ever spoken to the third named defendantor had any dealings or correspondence with him. In one of thebroadcasts, the second named defendant said that, as part of theirinvestigation, RTÉ had spoken to a number of customers of NIB whowere brought into the same scheme by the plaintiff and had been told byher that the Revenue would never find out about their money in the Isleof Man.

3 The plaintiff having issued further statements in which she denied thatshe had ever encouraged either the third named defendant or anyone elseto invest in financial products for the purpose of evading tax,correspondence ensued between the solicitors for the plaintiff, thesolicitors for RTÉ and the second named defendant and thesolicitors for the third named defendant. The plaintiff called uponRTÉ, the second named defendant and Mr. Howard to withdraw theallegations they hadmade, which each of them refused to do. These proceedings were thenissued claiming damages for libel.

4 In the statement of claim, the transcripts of the broadcast in questionwere set out in full in the schedule. It was pleaded that the wordsmeant, and were understood to mean, that the plaintiff had advised andencouraged Mr. Howard and other unnamed persons to evade tax and that inter alia she was a dishonest person who was not fitto be a member of Dáil Éireann. In their defence,RTÉ and the second named defendant denied that the wordscomplained of were defamatory of the plaintiff. It was further pleaded,however, that insofar as they meant or were understood to mean inter alia that the plaintiff had advised andencouraged Mr. Howard to invest monies which had not been declared tothe Revenue Commissioners and had assured other persons whom she wasadvising to invest in the scheme that the investments would remainhidden from the Revenue, the words were true in substance and in fact.It was further pleaded on their behalf that, insofar it was necessaryfor them to do so, they would rely on the provisions of s. 22 of theDefamation Act, 1961. The defence delivered on behalf of the third named defendant similarlydenied that the statements attributed to him bore the defamatory meaningalleged, but pleaded that, insofar as they meant, or were understood tomean, that the plaintiff had advised and encouraged Mr.Howard to invest monies which he was aware had not been declared to theRevenue Commissioners and that she had assured Mr. Howard that thelatter would never find out about such investments, the words complainedof were true in substance and in fact. The third named defendant alsorelied on the provisions of s. 22 of the Defamation Act, 1961.

5 Particulars of the plea of justification in the defence of Mr. Howardwere sought on behalf of the plaintiff. In the reply, it was stated thatthe facts relied upon were as set out in the defence. Shortly before thebeginning of the trial, further particulars were delivered in which itwas made clear that the defendant would rely in addition upon inter alia the dealings between the plaintiff andother customers of NIB.

6 The trial began before Morris P. and a jury on the 6 ^thFebruary, 2001. During the course of the trial, the trial judge ruledthat Mr. Howard was confined to the plea of justification in the defenceand that he was accordingly restricted to relying upon the dealingsbetween himself and the plaintiff.

7 The provisions of s. 22 of the Defamation Act, 1961which, as already noted, were relied upon in both the defences, were thesubject ofmuch argument both at the trial and on the hearing of the appeal. Thesection provides that

"In an action for libel or slander in respect of wordscontaining two or more distinct charges against the plaintiff, a defenceof justification shall not fail by reason only that the truth of everycharge is not proved, if the words not proved to be true do notmaterially injure the plaintiff's reputation having regard to the truthof the remaining charges."

8 While it had been pleaded in both defences that the words complained ofdid not bear the defamatory meanings attributed to them by theplaintiff, that defence was not relied on at the trial and much of theevidence adduced at the trial related to the pleas of justificationrelied on in both defences. In addition to the plaintiff, the secondnamed defendant and Mr. Howard, a number of other witnesses gaveevidence at the trial, including four customers of NIB who gave evidenceon behalf of the defence that the plaintiff had encouraged them toinvest in the Isle of Man Scheme and had assured them that the existenceof the monies invested by them in the scheme would never become known tothe Revenue Commissioners. Evidence was also given by tax experts and byofficials, or former officials, of NIB.

9 The case was at hearing for 29 days. At the conclusion of the evidence,the following questions were left by the trial judge to the jury:

10 2 "(1) Have the defendants proved that the plaintiffinduced [Mr. Howard] to evade his lawful obligation to pay tax by notavailing of the tax amnesty?

11 If the answer is "NO"...