Gordon v The Irish Racehorse Trainers Association

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 20 March 2020
• Neutral Citation: [2020] IEHC 425
• Docket Number: Record No. 2015/1418 P
• Court: High Court
• Date: 20 March 2020

BETWEEN

CHRIS GORDON

PLAINTIFF

AND

THE IRISH RACEHORSE TRAINERS ASSOCIATION

DEFENDANT

[2020] IEHC 425

Bernard J. Barton J.

Record No. 2015/1418 P

THE HIGH COURT

Defamation – Qualified privilege – Evidence – Defendant seeking to have the plaintiff’s case in a defamation suit withdrawn from the jury on all claims for insufficiency of evidence – Whether there was sufficient evidence upon which the jury could find as a matter of probability that the defendant was actuated by malice at the time of the relevant publications

Facts: The defendant, the Irish Racehorse Trainers Association, applied to the High Court to have the case of the plaintiff in a defamation suit, Mr Gordon, withdrawn from the jury on all claims for insufficiency of evidence. There were seven impugned statements, five of which had been met with a plea of qualified privilege. The statement of claim pleaded express malice on the part of the defendant. The principle ground advanced for withdrawing the case was that there was insufficient evidence upon which the jury could find as a matter of probability that the defendant was actuated by malice at the time of the relevant publications. As to the other two statements, the alleged petition to have the plaintiff removed as head of security of the Turf Club and the article published in ‘The Irish Field’ on the 9th August 2014, the contention advanced in relation to the former was that there was no evidence the petition existed let alone evidence of publication to the members of the defendant association or horse trainers in general or otherwise and as to the latter that in giving the interview he did there was no evidence Mr Meade did so on behalf of or with the authority of the defendant, furthermore, there was no evidence the article was understood to refer to the plaintiff.

Held by Barton J that there was evidence which, if accepted, would entitle the jury to find (i) that when Mr Meade made the impugned statements he did so on behalf of the defendant and (ii) that the impugned statements were understood to refer to the plaintiff, all of which were matters of fact for the jury; accordingly, the application to withdraw the case in respect of the third statement was refused. Having completed the exercise of considering all of the evidence available in relation to the alleged petition Barton J was satisfied that Mr McDowell was correct in his submissions that there was insufficient evidence to warrant a finding by the jury on the balance of probabilities that the defendant had drawn up a petition to remove the plaintiff from his position, nor was there sufficient evidence to ground a finding of publication, the absence of which was fatal to a cause of action in defamation. The Court therefore acceded to the application to withdraw the case in relation to the fourth statement from the jury. Barton J noted that the defendant had not sought to defend the fifth publication on the grounds of truth but rather on the basis that the occasion was privileged; it followed that if the jury found the statements made were published maliciously in the legal sense, as alleged by the plaintiff, the defendant would be robbed of the defence and rendered liable as a concurrent wrongdoer, notwithstanding the Doyles were not joined as parties. The Court refused the application to withdraw the case in respect of the fifth statement from the jury.

Barton J held that there was sufficient evidence which, if accepted, would entitle the jury to find on the balance of probabilities that there was malice on the part of the defendant at the time of publication of the first, second, sixth and seventh statements. The Court refused the application to withdraw the case in respect of those statements from the jury.

Application refused in part.

Judgment of Mr. Justice Bernard J. Barton in respect of the Ruling made on the 20th March 2020

1 This is the judgment of the Court on the Defendant's application to have the Plaintiff's case in a defamation suit withdrawn from the jury on all claims for insufficiency of evidence. The reader may find the background to the case set out in the judgement of the Court in Gordon v. The Irish Racehorse Trainers Association [2020] IEHC 363, to be of assistance in contextualising the application.

2 Written and oral submissions were made on the application and have been considered by the Court. What follows is not intended to be a comprehensive summary thereof but rather an attempt to encapsulate as briefly as possible the relevant contentions advanced. There are seven impugned statements, five of which have been met with a plea of qualified privilege. The statement of claim pleads express malice on the part of the Defendant. Suffice it to say that the principle ground advanced for withdrawing the case is that there is insufficient evidence upon which the Jury could find as a matter of probability that the Defendant was actuated by malice at the time of the relevant publications.

3 As to the other two statements, the alleged petition to have the Plaintiff removed as head of security of the Turf Club (the petition) and the article published in ‘The Irish Field’ on the 9th August 2014, (the August 9th article) the contention advanced in relation to the former is that there is no evidence the petition existed let alone evidence of publication to the members of the Defendant association or horse trainers in general or otherwise and as to the latter that in giving the interview he did there is no evidence Noel Meade did so on behalf of or with the authority of the Defendant, furthermore, there is no evidence the article was understood to refer to the Plaintiff.

Preliminary Observations;

4 Given the issues which have arisen, I consider it necessary to make some preliminary observations concerning the pleadings pertinent to the subject application. The Plaintiff pleaded seven separate defamatory publications which he contends are interrelated and evidence a campaign by the Defendant to have him removed from his post as head of security. The Defendant contends that the Court should approach the application by taking each statement separately and test the evidence of malice, if any, against it. As mentioned already, the Defendant has chosen to meet the claims in respect of the first, second, fifth, sixth and seventh publications by pleading qualified privilege and in respect of the latter three by traversing the allegation of publication. The defence of justification/truth is not pleaded by way of defence to any of the impugned statements. For discussion on the general principles and test to be applied by the trial judge on the application to dismiss civil jury proceedings see Tracey and another v McDowell and others [2018] 446

Burden of Proof

5 The law requires the Defendant to carry the burden of proof in respect of the defence of qualified privilege and it continued to do so throughout the trial until Mr Harty interrupted Mr McDowell's oral submissions to concede on behalf of the Plaintiff that the first, second, fifth, sixth and seventh statements were published on occasions of qualified privilege. It follows the only issue with which the Court is concerned on these statements is whether there is sufficient evidence of malice as pleaded. The Defendant's written submissions were prepared in advance of the concession and have been read by the Court taking this concession into account.

6 In opening the defence case to the Jury, Mr McDowell explained the concept of proof and the burden carried, by the Defendant in respect of qualified privilege and by the Plaintiff in respect of malice and publication. The Jury was informed that provided the publication of a defamatory statement was on an occasion of qualified privilege the law afforded the Defendant a complete defence to the action in damages unless the Defendant was actuated by legal malice at the time of publication. As a consequence of the concession, Mr Harty fairly accepted the proposition advanced by Mr McDowell that the onus carried by the Plaintiff in relation to malice is a heavy one. Although the parties were ad idem in relation to the law to be applied by the Court, I consider it appropriate in the circumstances to refer briefly to a number of authorities and legal texts which were opened to the Court on the application.

The Law; Withdrawal / Leaving Issue of Malice to the Jury;

7 The issue of malice must be left to the jury where the trial judge is satisfied that the existence of malice as a matter of probability is an inference which the jury would be entitled to draw from the evidence. In reaching a conclusion as to whether the evidence supports the probability of malice the court is entitled to have regard to different pieces of evidence which appear to the trial judge to be interrelated. If it would be reasonable for the jury to hold as a matter of probability that any one of a number of instances or examples pointed to by the plaintiff in respect of one or more publications represents malice, the trial judge must allow the case to go to the jury. [ emphasis added]

8 It follows that where none of the pieces of evidence or instances of malice pointed to by the plaintiff could reasonably be held as a matter of probability to amount to malice the case must be withdrawn because it would not be open to the jury to hold that the aggregate of a number of pieces or instances of evidence could amount to malice, no one of which could itself be held to be evidence of malice. The mere possibility of evidence of malice from several pieces or incidents of evidence cannot by reason of multiplicity alone render probable that which is merely possible. In brief, evidence of malice cannot be obtained from incidents or pieces of evidence no one of which is in itself evidence of malice

9 In this regard, the attention of the Court was drawn to the judgement of O'Byrne J., in the decision of the...