Gilchrist v Sunday Newspapers Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 21 June 2017 |
| Neutral Citation | [2017] IECA 191 |
| Docket Number | [C.A. Nos. 161 & 162 of 2016],Record No.: 2013/11584P Court of Appeal Record No.: 2016/160 Record No.: 2013/11583P Court of Appeal Record No: 2016/ 159 |
| Court | Court of Appeal (Ireland) |
| Date | 21 June 2017 |
[2017] IECA 191
THE COURT OF APPEAL
CIVIL
Irvine J.
Finlay Geoghegan J.
Peart J.
Irvine J.
Record No.: 2013/11584P
Court of Appeal Record No.: 2016/160
Record No.: 2013/11583P
Court of Appeal Record No: 2016/ 159
AND
AND
Defamation – Damages – Error in law – Respondents seeking damages for defamation – Whether trial judge erred in law
Facts: The respondents, Mr Gilchrist and Ms Rogers, by separate proceedings each issued on the 22nd October, 2013, commenced proceedings against the appellants, Sunday Newspapers Ltd, its editor, Mr McGinty, and Ms Tallant, a journalist employed by Sunday Newspapers. They claimed damages for defamation arising out of articles authored by Ms Tallant which were published in the Sunday World on the 9th and 16th June, 2013. On the 15th March, 2016, the High Court (MacEochaidh J) refused an application brought by the appellants in both actions seeking orders pursuant to s. 14(1)(a) and (b) of the Defamation Act 2009. The appellants appealed to the Court of Appeal against the order and judgment of the High Court, submitting that the trial judge erred in law while considering the s.14 application, which required him to consider whether the article of the 16th June, 2013 was reasonably capable of the meanings contended for by the plaintiffs, when he looked to the content of the article of the 9th June 2013 for that purpose.
Held by Irvine J that the High Court judge erred in law when he concluded that in determining whether the article published by the newspaper on the 16th June, 2013 was capable of bearing the meanings contended for by Mr Gilchrist at paras. 9(a)-(b) and 10(a)-(d) of his statement of claim and by Ms Rogers at para. 7(a)-(h) of her statement of claim, that it was legitimate to consider that article in the context of the impression that the earlier article published on the 9th June, 2013 would likely have had on the reasonable reader. Irvine J held that the High Court judge failed to lawfully rule upon the appellants’ applications pursuant to s. 14(1) of the 2009 Act. Irvine J was satisfied that the justice of each case was best served by the Court determining the appellants’ applications de novo in accordance with the prevailing principles.
Irvine J held that she would allow the appellants’ appeals.
Appeal allowed.
This judgment relates to two appeals brought by the defendants/appellants against the order and judgment of the High Court (MacEochaidh J.) of the 15th March, 2016. In particular, it addresses the ex tempore judgment of the High Court judge which refused an application brought by the defendants in both actions seeking orders pursuant to s. 14(1)(a) and (b) of the Defamation Act 2009 (‘the 2009 Act’).
The plaintiff/respondent in the first of the above-entitled proceedings, Mr. Patrick Benedict Gilchrist (‘Mr. Gilchrist’), is a former member of An Garda Síochána who, prior to his retirement, had attained the rank of Detective Inspector. It is common case that whilst so employed he was involved in the State's Witness Protection Programme (‘WPP’).
Ms. Isabel Rogers (‘Ms. Rogers’), the plaintiff in the second of the above-entitled proceedings, is a psychotherapist by profession. It does not appear to be in dispute that she was retained for the purpose of providing professional services in the context of the State's WPP. Mr. Gilchrist and Ms. Rogers are now married to each other and reside in England.
By separate proceedings each issued on the 22nd October, 2013, Mr. Gilchrist and Ms. Rogers commenced proceedings against Sunday Newspapers Limited, its editor, Mr. Colm McGinty, and Ms. Nicola Tallant, a journalist employed by Sunday Newspapers. They are claiming damages for defamation arising out of articles authored by Ms. Tallant which were published in the Sunday World on the 9th and 16th June, 2013. For the purposes of this judgment, I will refer to the three defendants as ‘the Newspaper’ as nothing turns on the individual involvement of the three defendants.
Insofar as these appeals relate to applications brought by the Newspaper concerning the meanings which Mr. Gilchrist and Ms. Rogers seek to impute to the article of the 16th June, 2013, I have decided to reproduce the text of that article in full immediately below. For reasons to do with the pleadings which I will later explain, some of the text appears in italics, some in bold print and other parts have been underlined. I will then describe some of the more significant features of the earlier article insofar as the principal complaint made on this appeal is that the High Court judge erred in law when he concluded that the article of the 16th June was reasonably capable of bearing the imputations and meanings pleaded by the plaintiffs by reference to the ‘get up’, photographs, headlines and text of the earlier article of the 9th June, 2013.
The article of the 16th June, 2013 appears below a photograph of Ms. Rogers and Mr. Gilchrist with the following headline and text:
‘The Garda Síochána have been given two weeks to disclose a raft of receipts and documents relating to monies alleged to have been spent by the Special Detective Unit to protect State witness Dave Mooney.
The State has to furnish the details of its spending, including fees paid to a ‘doctor’ who is not registered on the medical councils in Ireland or the UK and who went on to marry Mooney's Garda handler.
The High Court has ordered the discovery of all documents, including the bills charged by therapist Isabel Rogers who, it is claimed by Mooney, was passed off as a doctor to examine him.
Last week the Sunday World revealed how Rogers and former top cop Benny Gilchrist are at the centre of the case.
It is understood Gilchrist later left his wife, divorced and married Rogers.
The investigation into funds and expenses is believed to have examined how the pair travelled first-class around the world and stayed in five-star hotels with other SDU officers at the expense of the State.
During the trial of CIRA extortionists Billy Clare and Martin Kelly it was claimed that almost €40,000 was spent on the State witness Mooney.
However, the businessman disputes this. He says he lived for about €130 a week in safe houses as he waited to give evidence and had to make that stretch to grocery shopping, medical supplies and even his clothing.
He is taking the case because he says he was promised a Green Card to go to the US and a new identify after his evidence helped successfully jail Kelly and Clare, but instead he says he got nothing and is still living in Ireland in fear for his life.’
The earlier article of the 9th June, 2013 is what can only be described as a colourful, eye catching report spread over two pages with approximately one third of the total area given over to the text of the article. There are two photographs of Ms. Rogers, one with Mr. Gilchrist and one of her on her own. Beside the latter photograph is the following headline: ‘PROBE: Isabel Rogers is not registered with the medical councils in either Ireland or England (left) with Benny Gilchrist’. There are three photographs of Mr. Gilchrist. Alongside one of these is the caption: ‘STUNNED: Gilchrist refused to comment’. There is also a photograph of two cars beneath which is the caption: ‘LAVISH LIFESTYLE: Flash cars parked outside the home of Gilchrist and Rogers’.
The two main headlines to the article are printed in a large bold font and read ‘THE WORLD IS WATCHING COPS UNDER SPOTLIGHT’ and ‘WITNESS PROTECTION’, beneath which are three headlines set out in large bold type and in bullet point format. These read as follows:-
‘• Landmark case set to expose the ‘shambles’ at heart of secret Garda unit
• Doctor who assessed witnesses wasn't registered with Irish Medical Council
• She became the lover of cop handler who was probed over unit's cash’
There then follows the text of the article which deals with the author's ‘Special Investigation’ into Mr. Gilchrist and Ms. Rogers where she details her understanding of the role of Mr. Gilchrist and Ms. Rogers in relation to the State's WPP. She refers to a ‘probe’ set to re-ignite accusations concerning Mr. Gilchrist's expenditure and lifestyle while carrying out his role and the fact that he was previously investigated for suspected misappropriation of funds. She refers to ‘thousands in cash’ paid to Ms. Rogers for one brief examination of a witness within the WPP. The article reports that accusations had been made to the effect that Ms. Rogers had travelled first class around the world at the expense of the State, to the fact that she was not a medical doctor and that she had passed herself off as such. It also reports that the Newspaper had ‘tracked down’ Mr. Gilchrist and that when he had been contacted he was in no mood to talk. The article also referred to the affluent lifestyle, home and cars enjoyed by Mr. Gilchrist and Ms. Rogers.
The statement of claim in each action was delivered on the 14th November 2013.
It is important in this regard to make clear that while the Newspaper's applications pursuant to section 14(1) of the 2009 Act were directed to the imputations alleged by each plaintiff in relation to the article of 16th June, 2013, the statement of claim in each case claims that the two-page article published on...
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