Gordon v The Irish Racehorse Trainers Association

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 22 December 2022
• Neutral Citation: [2022] IECA 303
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2020/224

Between

Chris Gordon

Plaintiff/Respondent

and

The Irish Racehorse Trainers Association

Defendant/Appellant

[2022] IECA 303

Murray J.

Noonan J.

Ní Raifeartaigh J.

Court of Appeal Record No. 2020/224

High Court Record No. 2015/1418 P

THE COURT OF APPEAL

CIVIL

Defamation – Damages – Quantum – Appellant appealing the award in damages made in favour of the respondent – Whether the award in general damages was unreasonable or disproportionate

Facts: The plaintiff/respondent, Mr Gordon, sought damages for defamation. The claim arose from seven different alleged publications. Each was said to relate to the discharge by the plaintiff of his duties as head of security of a body known as ‘the Turf Club’ and all were allegedly made in circumstances which – it was claimed – gave rise to legal responsibility on the part of the defendant/appellant, the Irish Racehorse Trainers Association. Following a thirty day trial, a jury found five of those publications to have been made when the defendant had no honest belief in their truth and as part of an orchestrated campaign against the plaintiff. An award of damages was made in his favour in a total amount of €300,000. The award included sums by way of aggravated and exemplary damages. As well as raising questions relevant to the quantum of the award made in favour of the plaintiff, the defendant’s appeal to the Court of Appeal presented a number of distinct issues regarding the correct test to be applied in determining whether a defendant has acted with malice on an occasion of qualified privilege, how a jury should be instructed in connection with such an allegation, when a body corporate may be fixed with liability as a result of statements made by one of its officers, when such a body will be liable for words spoken at a meeting arranged by it and how a party can become liable for publications to, and letters issued by, its solicitor on its behalf.

Held by Murray J that the grounds relied upon by the defendant in the appeal against the findings and awards made by the jury were without foundation. Murray J held that the trial judge delivered a charge to the jury on the issue of malice that was as clear as it was correct; the evidence before the jury that the defendant failed to take the most rudimentary of steps to check or interrogate the allegations made by the Doyles when combined with evidence consistent with the plaintiff’s claim that the defendant was engaged in a campaign against the plaintiff so as to prevent the continuation of joint inspections of trainers’ premises, was sufficient to enable the jury to conclude that there was indeed such malice. Murray J held that, usually, the rules governing legal professional privilege will operate to render it impossible for a claimant to sue in defamation in respect of publications made by a person to his solicitor and it is open to a defendant not to invoke that privilege; where a defendant does not invoke legal professional privilege and the plaintiff can thus prove a defamatory publication, the weight of authority suggested that the privilege in defamation is qualified and that liability will thus be imposed if the plaintiff discharges the substantial burden of establishing malice. He held that the question of whether (and if so when) such communications should or do enjoy absolute privilege was not before the Court in this case. He held that if Mr Meade was speaking on behalf of and with the authority of the defendant when he made the allegations he did against the plaintiff in the course of the interview published in The Irish Field, the defendant was properly made liable in defamation for those statements; there was evidence before the jury from which it could so conclude, in particular in the form of the letter from the defendant’s solicitors to the plaintiff’s solicitors of 8 October 2014. Murray J held that the jury was entitled to find the defendant liable for the statements made by the Doyles at the meeting held at the Keadeen Hotel in Naas on 15 August 2014; that meeting was suggested by the defendant and the Doyles were brought to the meeting for the specific purpose of repeating the allegations they had made in the office of the defendant’s solicitors on 4 June 2014. In all of the circumstances, he held that the defendant had not established that the award of €200,000 in general damages made in favour of the plaintiff was either unreasonable or disproportionate, and the jury award of €50,000 for aggravated and of €50,000 for exemplary damages should not be interfered with.

Noonan and Ní Raifeartaigh JJ agreed with this judgment.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 22 ^nd of December 2022

CONTENTS

I BACKGROUND
This appeal	1
The ‘book of evidence’	5
The inspection of 26 March 2014	12
Fairyhouse	21
The positions of the plaintiff and of the racehorse trainers	29
II THE PUBLICATIONS
The sixth publication: the inspection of Mr. McGuinness' property	36
The first publication: the Doyles' statements and the instructions to Mr. Ward	40
The second publication: Mr. Ward's letter	49
The third publication: The Irish Field article	54
The fourth publication: the petition	56
The fifth publication: the meeting at the Keadeen Hotel	57
The seventh publication: the inspection of Mr. Flood's premises	63
III THE PROCEEDINGS, THE TRIAL AND THIS APPEAL
The proceedings	66
The trial	72
The issue paper	75
This appeal	77
IV MALICE
The objection	80
Malice and the judge's charge	82
Malice ‘in the legal sense of the word’	93
Assessment of the charge	95
Accepting the Doyles' account	102
The focus on improper motive	131
The established relationship	140
No evidence of malice?	147
V THE IRISH FIELD ARTICLE: AGENCY
The issue	156
The pleading, the decision of the trial judge and the issue paper	163
Agency and vicarious liability	170
Application of agency principles	178
The issue paper	189
VI THE KEADEEN HOTEL: LIABILITY FOR WORDS SPOKEN AT THE MEETING
Background	191
The trial judge's decision	194
The issue	196
The law and its application	199
VII THE FIRST AND SECOND PUBLICATIONS: LIABILITY FOR SOLICITORS' COMMUNICATIONS
The issues	202
Malice and communications to and from solicitors	208
VIII MISCELLANEOUS ISSUES
Concurrent wrongdoers	213
Evidence regarding the fourth statement	218
Error in charge as to the fifth defamation	221
The sixth and seventh statements	224
Admission of inadmissible evidence	236
The refusal to adjourn the trial	244
IX DAMAGES
Disproportionate and excessive	245
Aggravated and exemplary damages	256
X CONCLUSION

I BACKGROUND

This appeal

1 . The plaintiff was, in 2014, the head of security of a body known as ‘ the Turf Club’. At that time the Turf Club, although a private organisation, had responsibility for regulating horseracing in this jurisdiction and thus for enforcing the Rules of Racing. 1 It licenced all trainers and jockeys in Ireland.

2 . The defendant is the representative body for racehorse trainers in the State. It is a private company limited by guarantee. At the times relevant to these proceedings it comprised an Executive Committee or Council, and a membership body. The evidence at the trial was that the membership was composed of 300 or so racehorse trainers.

3 . In this action the plaintiff sought damages for defamation. The claim arose from seven different alleged publications. Each was said to relate to the discharge by the plaintiff of his duties as head of security of the Turf Club and all were allegedly made in circumstances which – it was claimed – gave rise to legal responsibility on the part of the defendant. Following a thirty day trial, a jury found five of these publications to have been made when the defendant had no honest belief in their truth and as part of an orchestrated campaign against the plaintiff. An award of damages was made in his favour in a total amount of €300,000. The award included sums by way of aggravated and exemplary damages.

4 . As well as raising questions relevant to the quantum of the award made in favour of the plaintiff, this appeal presents a number of distinct issues regarding the correct test to be applied in determining whether a defendant has acted with malice on an occasion of qualified privilege, how a jury should be instructed in connection with such an allegation, when a body corporate may be fixed with liability as a result of statements made by one of its officers, when such a body will be liable for words spoken at a meeting arranged by it and how a party can become liable for publications to, and letters issued by, its solicitor on its behalf. Some of these issues do not commonly arise. That said, the context in which they present themselves here is far from usual.

The ‘book of evidence’

5 . It begins with a criminal prosecution. The evidence in the High Court was that on 4 October 2013 Mr. John Hughes, a retired Department of Agriculture veterinary inspector, pleaded guilty before Carlow District Court to possession of significant quantities of nitrotain, a powerful (and banned) anabolic steroid. The prosecution coincided with the emergence of other cases in which performance enhancing drugs had been found on the properties of persons associated with the horseracing industry in Ireland (and, as it happens, with the biggest doping scandal in British racing). Obviously, all of this was of concern to the Turf Club and, therefore,...