Dawson and Dawson v Irish Brokers Association

JudgeO'Flaherty J.
Judgment Date06 November 1998
Neutral Citation[1998] IESC 39
Docket Number46/98
CourtSupreme Court
Date06 November 1998



[1998] IESC 39

O'Flaherty J.,

Murphy J.,

Lynch J.,





Practice and Procedure

Damages; defamation; retrial on issue of damages; exemplary and aggravated damages; apprehension that jury might have to be discharged; preliminary rulings on admissibility of evidence; dismissal of plaintiff's action following plaintiff's refusal to proceed; appeal against dismissal; circumstances in which a jury should be discharged; whether matters can be raised at a retrial, which were not raised at original trial; whether plaintiffs were entitled to advance claim for exemplary and aggravated damages at retrial; whether plaintiff entitled to assert a general loss of profits at retrial Held: Retrial ordered Dawson v. Irish Brokers Association - Supreme Court: O'Flaherty J., Murphy J., Lynch J. - 06/11/1998

A High Court jury awarded the plaintiffs £515,000 damages for defamation, but the Supreme Court held that the award was excessive and ordered a retrial on the issue of damages only.

Before the retrial, the defendant complained that some of the matters referred to by the plaintiffs were inadmissible. The trial judge was asked to rule on which matters could be opened to the jury. In the light of his rulings, the plaintiffs refused to proceed, on the grounds that they could no longer obtain a proper retrial. The trial judge then dismissed the plaintiffs’ claim and awarded costs against them.

The Supreme Court, ordering another retrial, said that its views on an appeal could not be taken to govern any retrial, which might take a completely different complexion. Issues which were not raised at the original trial could be raised at a retrial. In this case, the trial judge was wrong to assume from the Supreme Court judgment that damages should only be compensatory. The plaintiffs were entitled to explore their possible right to aggravated damages and general damages for loss of profits. They were also entitled to pursue a claim for exemplary damages which had not been pleaded in the statement of claim. While the plaintiffs were not entitled to try and prove allegations of criminal conduct against the defendant, they were entitled to suggest to the jury that the defendant had acted maliciously because of the allegations.

The court said, obiter, that aggravated damages should be regarded as a sub-head of compensatory damages; exemplary (or punitive) damages were not compensatory. A jury which had heard inadmissible evidence should only be discharged in the most extreme circumstances.


D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 476



O'Flaherty J.



The background history to this litigation is set forth in my judgment delivered on 27th February, 1997 (Hamilton C.J., Barrington J. concurring). In summary, the Court held that the learned trial judge (Barron J.) at the first trial that went the distance, in the sense of being subject to an award by a jury, had been correct in holding that the plaintiffs had been defamed but that the sum of £515,000 damages awarded by the jury was excessive and that there should be a retrial confined to an assessment of damages exclusively.


As in the first action and appeal, when the brothers Albert and Dudley Dawson conducted the proceedings as lay litigants and Albert Dawson was the chief protagonist, so in relation to the retrial; and on this present appeal. Once again, when I refer to the plaintiff, I intend to refer to Albeit Dawson though, of course, Dudley Dawson is also a party who has an identity of interest with his brother.


The retrial commenced before Budd J. and a jury on 3rd February, 1998, and continued until 10th February when it came to an end. This was because of a decision by the plaintiffs not to proceed further with the action in the light of certain preliminary rulings made by the trial judge in advance of the full opening of the case.


The rulings to which the plaintiffs objected were given on 6th February, The plaintiff made a start at opening the case on that date but was taken sick and so the case was adjourned until 10th February. By that time, the plaintiffs had a chance to consider the trial judge's rulings and their stance was that the trial judge had taken away their right to a proper retrial of their case.


The order of the High Court as drawn up sets forth:-


"Whereupon the first named plaintiff having opened [note:more accurately, having commenced to open] the plaintiffs” case to the jury on the 6th day of February, 1998.


And upon the matter coming on again for hearing on this 10th day of February, 1998.

And the plaintiffs having refused to proceed

AND IT IS ORDERED that the plaintiff's claim herein for damages be and the same is hereby dismissed and that the defendant do recover against the plaintiffs the costs of this hearing when taxed and ascertained on a party to party basis (including costs reserved by Order of the Court dated the 23rd day of June, 1997, relating to discovery and the furnishing of particulars the costs reserved by the Order of the Court dated the 15th day of October, 1997, and the costs reserved by Order of the Court dated the 25th day of November, 1997).


AND IT IS ORDERED that the money paid into Court by the defendant be withdrawn from deposit and paid to the defendant together with all interest accrued thereon."


The plaintiffs appeal to this Court against the dismissal of their action.


Between the date of the judgment and order of the Supreme Court (27th February, 1997) and the actual retrial, a number of interlocutory events should be noted. On the 23rd June, 1997, Moriarty J. made orders in relation to two motions brought by or on behalf of the defendant and one order in response to an application brought by the plaintiffs.

In the orders made, Moriarty J.:-

(1) Directed that the plaintiffs furnish to the defendant particulars as to the turnover of the plaintiffs” business for a period described therein and make discovery of documents relating to the turnover;


(2) Granted the defendant liberty to amend its defence and to lodge a sum of money in Court, and


(3) Gave a priority listing to the case in the Dublin jury list for Michaelmas term, 1997.


On the 15th October, 1997, Kelly J., on the defendant's motion, struck out most of the reply delivered by the plaintiffs in answer to the defendant's amended defence in which he also directed the plaintiffs to make discovery of certain categories of documents.


On 25th November, 1997, a further order was made by Kelly J., upon the defendant's motion, directing that the plaintiffs make available for inspection by the defendant eleven categories of documents relating to the plaintiffs” business for periods both before and after the publication of the defamatory material.


In the course of these interlocutory matters, the plaintiffs filed a number of affidavits and the complaint made on behalf of the defendant about them is that they contain material which would clearly not have been admissible at the trial.


To give a flavour of what the plaintiffs were alleging, I take this extract from an affidavit sworn by Mr. Albert Dawson on 21st April, 1997:-


2 "3. During 1991 and the early part of 1992, the plaintiffs made numerous complaints about the affairs of the defendant and sought accounts from the defendant, particularly of the defendant's compensation fund. In particular, the plaintiffs complained about the defendant acting contrary to the Companies Acts and the defendant's own Articles of Association, about false advertising by the defendant, about the defendant allowing its members to act contrary to the Insurance Act, 1989, and depriving the public of the protection which the Insurance Act,1989, gave to the public, and about financial irregularities which were apparent in the limited abridged accounts issued by the defendant.


4. The first named plaintiff attended the Annual General Meeting of the defendant, on the 3rd day of April, 1992, at which the defendant issued the first set of Compensation Fund Accounts ever issued.


3 5. An examination of these accounts by the plaintiffs, showed that the defendant was engaged in massive tax evasion. Furthermore, plaintiffs read a full page of false advertising by the defendant. As a consequence of these discoveries by the plaintiffs, it would have been impossible for the plaintiffs to remain members of the defendant, when their membership would expire on 31st day of December, 1992, without the plaintiffs becoming accessories to the crimes of the defendant, and the plaintiffs informed the defendant, by letter dated 4th day of April, 1992, that the plaintiffs would not renew their subscription in 1993."


Prior to the commencement of the retrial, the defendant's solicitors wrote to the plaintiffs by letter dated the 30th January, 1998, in which they said that many of the matters referred to by the plaintiffs in their reply and in their affidavits were not admissible and that objection would be taken at the retrial of the action to these matters if the plaintiffs attempted to introduce them. At the request of the trial judge, heads of objection were prepared by the defendant's counsel and the trial judge was asked to give preliminary rulings on what matters might be opened to the jury and what might not.


It should be said that this was a somewhat unusual course, but the defendant's counsel say they were influenced by the fact that, at their request, the original jury...

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