Foley v Independent Newspapers (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 January 1994
• Neutral Citation: 1994 WJSC-HC 706
• Court: High Court
• Date: 01 January 1994

1994 WJSC-HC 706

THE HIGH COURT

FOLEY v. INDEPENDENT NEWSPAPERS (IRL) LTD

BETWEEN

CIARAN FOLEY

PLAINTIFF

AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED MARTIN McCORMACK, GERALDINE, COLLINS, SHANE ROSS AND JIM TUNNEY

DEFENDANTS

Citations:

DEFAMATION ACT 1961 S23

DEFAMATION ACT 1952 S6 UK

HARRIS V WHITE LTD 1926 OPD 104

SELIGMAN LTD V INVESTORS REVIEW LTD THE TIMES 4.7.29

CAMPBELL V SPOTTISWOODE (1863) 3 B & S 769

MERIVALE V CARSON (1888) 20 QBD 275

JOYNT V CYCLE TRADE PUBLISHING COMPANY (1904) 2 KB 292

HUNT V STAR NEWSPAPER COMPANY LTD (1908) 2 KB 309

CONSTITUTION ART 40.6.1(i)

CONSTITUTION ART 40.3.2

COURTS OF JUSTICE ACT 1936 S78

DAKHYL V LA BOUCHIERE 1908 2 KB 325

Synopsis:

DEFAMATION

Libel

Defendant - Defence - Comment - Fairness - Incomplete statement of facts - Motives of plaintiff impugned - Defence of fair comment not establisged - Omission of salient feature from alleged true statement of facts - Plaintiff ordered to pay costs of successful defendant - Unsuccessful defendant ordered to indemnify plaintiff - Order set aside - (Appeal from the Circuit Court - Geoghegan J. - 21/12/93) - [1994] 2 ILRM 61

|Foley v. Independent Newspapers (Ireland) Ltd.|

1 Judgment of Mr. Justice Geoghegan delivered the21st day of December 1993.

2 This is an appeal by the first and fourth named Defendants from a decree of the Circuit Court for £30,000 damages awarded against them for libel. It is also an appeal by the same Defendants against an Order for costs over in respect of the costs of the fifth named Defendant who had been successful in the Circuit Court and who had obtained an Order for costs against the Plaintiff.

3 For obvious reasons it is necessary to determine the libel appeal first. The complaint of libel arises out of an article or column by Senator Shane Ross, the fourth named Defendant in the Sunday independent of the 8th of March 1992. The first named Defendant is the publisher and printer of that newspaper. The alleged libevous passage in the article reads as follows:-

"The inspectors were ripping off the State. They were sent into Greencore unveil skullduggery. They appear to have done an efficient job, but in the process they have decided to charge fees of an immoral not illegal magnitude."

4 £250,000 per inspector for six months work is a public scandal in itself. Certainly, a Minister could be forgiven for seven or eight impulsive telephone calls when he saw the bill reaching the million mark. Mr. O'Malley has an notoriously short fuse.

5 The Minister has exposed a piece of institutionalised hypocrisy. The inspectors were appointed to counter the culture of greed; they have turned out to bee part of it. Their brief was to protect the tax-payer; they're milking him.

6 The inspectors" fees are indefensible. They undermine the whole basis of the investigation. Excesses of capitalism always tread a fine line between legality and illegality. The comparative merits of tax avoidance and tax evasion have no moral difference but simply a legal distinction. These fees come into the tax avoidance category.

7 The Government turns out to be a god mark, an easy target for predators. Public money can be thrown away like confetti, if it is in the name of protecting the tax-payer!

8 No fees were agreed in advance. The Minister rightly saw the danger. His instincts were correct. It is a pity he offered so many hostages to fortune in his cavalier approach to the solution."

9 There is no plea of justification but there is a plea of fair comment in the form of a rolled up plea.

10 As Gatley and all the other textbook writers point out the authorities establish that for a comment to escape being defamatory solely on the grounds of it being a fair comment on some matter of public interest the following requirements must be complied with.

11 (1) It must be based on facts truly stated subject to the qualification contained in Section 23 of the Defamation Act 1961 which is similar to Section 6 of the English Defamation Act 1952.

12 (2) It must not contain imputations or corrupt of dishonourable motives on the person whose conduct or work is criticised save insofar as such imputations are warranted by the facts.

13 (3) It must be the honest expression of the writers real opinion.

14 I am satisfied that neither the first nor the second of these requirements has been complied with in this case and that accordingly the defence of fair comment fails on the quite separate grounds.

15 In the first place the relevant facts have not been truly stated. A true statement of grounding facts is not necessarily constituted by a series of sentences which are literally accurate. In the seventh edition of Gatley on Libel at paragraph 722 the following passage appears.

"Again, the defence of fair comment will fail if the Defendant omits from the statement of facts on which the comment purports to be based, some important fact which had it been mentioned would falsify or alter the complexion of the facts that are stated."

16 Two cases the reports of which I have been unable to obtain are cited in support of this proposition Harris v. White Limited (1926) O.P.D. 104 and Seligman Limited v. Investors Review Limited The Times, July the 4th 1929. But I have no doubt that the passage represents good law and good sense.

17 In this case a fact of fundamental importance has been omitted from the article. The £250,000 was a cumulative figure based on a particular mode and particular rates of remuneration negotiated and agreed with the State within a relatively short period of the appointment. Any ordinary reader of the article unaware of the facts would have understood the author to be saying that the Plaintiff and his colleague sent in their respective bills totalling £250,000 each without any prior agreement with the State as to the manner of remuneration. If the article had explained that the fees were agreed, as was the case, following negotiations at a meeting involving officers of the Department of Finance, Department of Justice, Department of Industry and Commerce and the Attorney General's Office or had even referred to these negotiations and subsequent agreement in a general way the facts would have been truly stated, but that was not done. The omission in my view is fatal to the plea of fair comment in this case.

18 But even if I am wrong about that, I am satisfied that the offending passage in the article imputed dishonourable...