Duffy v News Group Newspapers Ltd (No. 2)

JurisdictionIreland
JudgeO'Flaherty J.
Judgment Date01 January 1994
Neutral Citation1993 WJSC-SC 3486
CourtSupreme Court
Docket Number[S.C. No. 115 of 1993]
Date01 January 1994
DUFFY v. NEWS GROUP NEWSPAPERS LTD

BETWEEN

EUGENE DUFFY
Plaintiff/Appellant

AND

NEWS GROUP NEWSPAPERS LIMITED WENDY HENRY AND MIKEBEAUMONT
Defendants/Respondents

1993 WJSC-SC 3486

Finlay C.J.

O'Flaherty J.

Egan J.

Blayney J.

Denham J.

(115/93)

THE SUPREME COURT

Synopsis:

DEFAMATION

Libel

Point of law - Determination - Time - Propriety - Preliminary issue - Whether words capable of defamatory meaning - Issue left for determination at trial of action - (115/93 - Supreme Court - 25/11/93) - [1994] 3 IR 69 - [1994] 1 ILRM 364

|Duffy v. News Group Newspapers Ltd.|

PRACTICE

Trial

Point of law - Determination - Time - Action - Cause - Libel - Preliminary issue raised by defendant - Whether relevant words capable of having defamatory meaning - Evidence necessary to resolve that question - Issue inappropriate for decision by judge before trial of action - Rules of the Superior Courts, 1986, order 25 - (115/93 - Supreme Court - 25/11/93) - [1994] 3 IR 69 - [1994] 1 ILRM 364

|Duffy v. News Group Newspapers Ltd.|

Citations:

RSC O.25 r1

DUFFY V NEWSGROUP NEWSPAPERS LTD 1992 2 IR 369

RSC O.36 r7

KEAYS V MURDOCH MAGAZINES (UK) LTD 1991 4 AER 491

MORRIS V SANDESS UNIVERSAL PRODUCTS 1954 1 AER 47, 1954 1 WLR 67

GATLEY ON LIBEL & SLANDER 8ED (1991) PARA 1090

RSC O.33 r3 (UK)

PYKE V HIBERNIAN BANK 1950 IR 195

MCDONALD V BORD NA GCON 1964 IR 350

MCDAID V SHEEHY 1991 1 IR 1

MURPHY V ROCHE 1987 IR 106

MCDONAGH V NEWS GROUP NEWSPAPERS LTD 26.11.93 1993/13/4009

O'BRIEN V EASON (1913) 47 ILTR 266

KNUPFFER V LONDON EXPRESS NEWSPAPER LTD 1944 AC 116

EASTWOOD V HOLMES 1 F & F 347

RSC O.25

1

O'Flaherty J.delivered the 25th day of November, 1993. [NEM DISS]

2

In these defamation proceedings the defendants obtained an order under Order 25, r. 1 of the Rules of the Superior Courts, 1986 from the High Court (Morris J.) on the 26th January, 1993 directing that an issue be set down for hearing to be disposedof as a preliminary point of law as to whether the words complained of in the statement of claim are capable of bearing any meaning defamatory of the plaintiff.

3

The parties have already been before this Court when an application seeking to have consolidated several actions arising out of the same publication was refused on the 26th June, 1992.

4

On that occasion McCarthy J. gave the judgment with which the other members of the Court concurred ( [1992] 2 I.R. 369). In essence, I will give his summary of the background to the litigation together with a reproduction of the relevant passages in the publication about which the plaintiff makes complaint. I will, however, make one or two additions to the narrative.

5

The plaintiff lives near Crossmaglen, County Armagh; he was at all material times chairman of Crossmaglen Rangers Gaelic Football Club. He is a building contractor with a substantial business in Northern Ireland. The first defendant is the proprietor and publisher of the News of the World newspaper and of the magazine "Sun Day" distributed with that newspaper. It has a wide circulation throughout Ireland and, no doubt,throughout Great Britain. The second defendant is the editor of the newspaper and the third defendant was at all material times a journalist employed by the newspaper. On the 6th November, 1988, the defendants published a three page article in the magazine section of the newspaper under the heading, "British Marine breaks silence to reveal full horror of Northern Ireland." The second and more striking heading was "THE IRA DRILLED THROUGH HIS BRAIN".

6

The article purports to be an interview with someone who served in the British Army in Northern Ireland and who was given the pseudonym "Corporal David Roberts". The article recounts the existence of a group known as "14 I.N.T. men" (numbering not 14 but around 100 men) and it is said to be a "tougher outfit" than the Special Air Services (S.A.S). [That is a special unit in the Britisharmy].

7

The article further sets forth as follows:

"Recruited mainly from the S.A.S. the marines and paras, the 14 I.N.T. men also take charge of some of the hardest surveillancejobs."

8

"At one briefing just before a night patrol we were told we were to be accompanied by two men. We were ordered not to talk to them or even look at them, but simply to let them move with us until we got near a Gaelic Football Club hall some yards from the Crossmaglencamp.

9

As we got to the playing field I spotted one of the men on his belly rolling rapidly along - he was completely blacked-out and was heavily armed. He was covered in electronic equipment that I'd never seen before, and he had a load of camera gear strapped to his back. We passed close to the hall, and then marched away into the distance. But they stayed inside that building for a whole week".

10

Sitting in silence for 7 days, aware that any moment could spell disaster or death, these two men from 14 I.N.T. recorded details of terrorist plots as they were being planned just feet away.

11

"They would have found a space in the attic, under thefloor-boards, heaven knows where says David. They'd have carried rations and disposed of their body wastes into plastic bags - smells can give you away as easily as noises.

12

Those men must have lived in hell for 7 days, soaking up information. But if anyone had stumbled on them, that person would have had his throat cut instantly and then they would have slipped out just as quietly as they arrived"."

13

McCarthy J., in the course of his judgment, summarised the pleadings in the case and reached the conclusion that the substantial issue was whether or not the article referred to the plaintiff. If it does, he concluded, since there was no plea of justification, privilege or fair comment, the article being grossly defamatory, the only issue can be the amount of damages which, on any view, must be large.

14

Issue is taken on behalf of the defendants with this finding and it is said to be an obiter dictum. However, whether that is so or not I believe the issue whether the relevant passage is capable of a defamatory meaning admits of no doubt. It clearly must be and one comes back again to the question whether the publication is capable of referring to the plaintiff.

15

What the defendants originally sought in the notice of motion which they brought dated the 4th November, 1992, pursuant to Order 25, was a ruling on whether the article the subject matter of these proceedings is capable of referring to the plaintiff and/or is capable of bearing any meaning defamatory of the plaintiff.

16

We were informed, in the course of the hearing, that the defendants did not pursue the former point conceding that the issue of whether the article was capable of referring to the plaintiff was something that would have to be left to the jury provided that the trial judge satisfied himself that it was capable of referring to theplaintiff.

17

That concession having been made, it is difficult to isolate a point of law, properly so called, for consideration by a judge in the manner proposed in the instant order made by the learned High Court judge.

18

Counsel for the defendants says that if the matter is dealt with by way of preliminary point of law that the plaintiff will be entitled to call evidence. He said that the defendants did not propose to call any evidence at this hearing.

19

If the complication of this motion had not been introduced into the proceedings it would appear that the approach that a trial judge sitting with a jury would take in the ordinary way would be to raise the question, for resolution by him in the first instance, whether the words are capable of referring to the plaintiff and, secondly, whether the words are capable of being defamatory of those to whom they may refer. If he could find affirmatively in regard to these two matters then the case would duly go to the jury.

20

As I have said before, I cannot conceive how anyone could think that the words were not capable of being defamatory to those to whom they refer, namely, anyone who was present, was an accomplice or connived at the presence of these alleged terrorist plotters meeting in the clubhall mentioned in the article. And, since it is conceded that the question whether the words werecapable of referring to the plaintiff was not suitable for resolution as a preliminary issue, I am at a loss to discover how this matter can proceed in any orderly way except with a trial in the ordinary course with judge and jury.

21

Order 25, r. 1 provides that any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries...

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