Herrity v Associated Newspapers (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 18 July 2008
• Neutral Citation: [2008] IEHC 249
• Court: High Court
• Docket Number: [2003 No. 15507 P]
• Date: 18 July 2008

Herrity v Associated Newspapers (Ireland) Ltd

BETWEEN

MICHELLE HERRITY

PLAINTIFF

AND

ASSOCIATED NEWSPAPERS (IRELAND) LIMITED

DEFENDANT

[2008] IEHC 249

[No. 15507 P/2003]

THE HIGH COURT

CONSTITUTIONAL LAW

Personal Rights

Right to privacy - Unauthorised telephone tapping - Transcripts of conversations published by defendant - Newspaper articles concerning relationship between plaintiff and Roman Catholic priest - Breach of right to privacy - Whether breach justified - Freedom of expression - Public interest - Balance of right to privacy and freedom of expression - R v Central Independent Television plc [1994] Fam 192 approved; Mahon v Post Publications Ltd [2007] IESC 15, [2007] 3 IR 338 and Cogley v RTÉ [2005] IEHC 180, [2005] 4 IR 79 followed; A v B plc [2002] EWCA Civ 337, [2003] QB 195 distinguished - Postal and Telecommunications Services Act 1983 (No 24), s 98(1) and (5) - Constitution of Ireland, 1937, arts 40.3 & 40.6 - Plaintiff awarded €90,000 damages (2003/15507P - Dunne J - 18/7/2008) [2008] IEHC 249

Herrity v Associated Newspapers (Ireland) Ltd

DAMAGES

Constitution

Right to privacy - Breach of right to privacy - Punitive damages - Whether action for damages for breach of right to privacy could be recovered against private person or entity - Whether punitive damages should be awarded - Norris v AG [1984] IR 36, Kennedy v Ireland [1987] I IR 587 and Cogley v RTÉ [2005] IEHC 180, [2005] 4 IR 79 followed; Dudgeon v UK [1981] 4 EHRR149, Meskell v CIÉ [1973] IR121, Conway v INTO [1991] 2 IR 305, M v Drury [1994] 2 IR 8, Re Kennedy and McCann [1976] IR 382, Argyll (Duchess) v Argyll (Duke) [1967] Ch 302 and X v Flynn (Unrep, Costello J, 19/5/1994) considered; Shortt v Commissioner of An Garda Síochána [ 2007] IESC 9 (Unrep, SC 23/3/2007) followed - Constitution of Ireland, 1937, art 40.3 - Plaintiff awarded €90,000 damages (2003/15507P - Dunne J - 18/7/2008) [2008] IEHC 249

Herrity v Associated Newspapers (Ireland) Ltd

Facts: The plaintiff sought damages for wrongful invasion of privacy arising from a series of articles published as to the plaintiff and a priest and the circumstances of their relationship. The contents of telephones conversations were also published, that had been illegally obtained from a phone tap conducted by a private detective. The issue arose as to the public interest in such a publication and the impact of the publication on the plaintiff.

Held by Dunne J. that the publication of the transcripts was in breach of Postal and Telecommunications Services Act 1983 and constituted a deliberate, conscious and unjustified breach of her right to privacy. Much of the material published was not in the public interest, including in particular the private telephone conversations. Punitive damages would be appropriate in light of the publications taking place over a period of three weeks to extract the maximum value out of the materials. The conduct of the defendant in the course of trial was significant. In light of the facts and circumstances of the case, ordinary and aggravated damages in the sum of €60,000 for the breach of privacy was appropriate and a further €30,000 damages would be awarded for the use of transcripts of phone conversations that had been obtained unlawfully.

Reporter: E.F.

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(5)

INTERCEPTION OF POSTAL PACKETS & TELECOMMUNICATIONS (MESSAGES) REGULATION ACT 1993 S13(3)

KENNEDY & ORS v IRELAND & AG 1987 1 IR 587

HANAHOE v HUSSEY 1998 3 IR 69

X v FLYNN UNREP COSTELLO 19.5.1994 1994/13/4325

M v DRURY 1994 2 IR 8 1995 1 ILRM 108

COGLEY & ORS v RADIO TELEFIS EIREANN (RTE) 2005 4 IR 79 2005 2 ILRM 529

WAINRIGHT v HOME OFFICE 2004 2 AC 406

MAHON v POST PUBLICATIONS LTD 2007 2 ILRM 1

M v DRURY 1994 2 IR 8 1995 1 ILRM 108

A v B PLC & ANOR 2003 QB 195

MCGEE v AG 1974 IR 284

CRIMINAL LAW (AMDT) ACT 1935 S17

CRIMINAL LAW (AMDT) ACT 1935 S17(3)

CONSTITUTION ART 40.3.1

NORRIS v AG 1984 IR 36

CONSTITUTION ART 40

MESKELL v CIE 1973 IR 121

CONWAY v IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 2 IR 305

CONSTITUTION ART 41

R v CENTRAL INDEPENDENT TELEVISION PLC 1994 3 WLR 20

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

SHORTT v COMMISSIONER OF AN GARDA SIOCHANA & ORS UNREP SUPREME 21.3.2007 2007 IESC 9

1 Ms. Justice Dunne on the 18 day of July 2008

2 The plaintiff in this case seeks damages for wrongful invasion and breaches by the defendant of the rights enjoyed by the plaintiff under the provisions of Bunreacht na hÉireann. Other relief arising from the same circumstances is also claimed.

3 The plaintiff is a married woman who was residing in Lucan in 2003. A number of articles appeared in a newspapers owned by the defendant over a three week period concerning the plaintiff. The first of the articles appeared in the edition of the 2 ^nd November, 2003, under the headline "Husband accuses priest of dirty dealing ... with his wife". The second article appeared on the 9 ^th November, 2003, under the headline "Wife's nights on the town with her OTHER 'wild' priest". The third article appeared on the 16 ^th of November, 2003, under the headline "Phone lover priest quits". A fourth article was subsequently published in 2004. It is not the subject of complaint in the pleadings herein although reference was made to it during the course of the hearing.

4 The articles concerned the relationship between the plaintiff and Fr. Heber McMahon, then a parish priest in Brackenstown, Swords, Co. Dublin. The first of the articles set out an account of the plaintiffs background and a history of the marriage of the plaintiff and her husband. It described how the plaintiff and her husband came to develop a friendship with Fr. McMahon over the years. It also set out some detail as to the breakdown of the marriage between the plaintiff and the plaintiff's husband. The subheading for this article was as follows:-

"The extraordinary tapes which revealed to parishioner that "all priest" star was a little too close for comfort".

5 This article was accompanied by three photographs of the plaintiff, one in which she is seen with her husband and another in which she is seen with Fr. Heber McMahon. There is also a photograph of Fr. McMahon. The article was also accompanied by a transcript of a telephone conversation that took place between the plaintiff and Fr. McMahon. That transcript was introduced as follows:-

"Michelle Herrity and Fr. Heber McMahon shared intimate and frequent telephone conversations which were intercepted by a private eye working for her husband, Liam. In the first extract, the couple have a lover's tiff, ironically sparked because the unsuspecting pair cannot work out why the phone line is bad. Bizarrely, both frequently refer to themselves in the third person as 'your wife' and 'your husband'."

6 The main body of the article referred to the extract from the transcript as follows:-

"Now Michelle's furious husband has reported Fr. McMahon to the Diocese after commissioning a private eye to spy on the couple and tape their intimate telephone conversations. For weeks the private eye tailed Fr. McMahon and Michelle and caught them going on holiday to Italy together and having dinner in a plush restaurant. But the clinching evidence that their relationship was far closer than appropriate for priest and parishioner came when the investigator taped a series of conversations between the two. The extraordinary tapes which have been listened to by Ireland on Sunday, contain lurid conversations between the pair in which they talk with baby voices and call each other 'husband' and 'wife'. In all, there are thirteen hours of cassettes which captured the nightly chats between the pair in which they regularly spoke of their love for each other."

7 The second article referred to was published on the 9 ^th November, 2003, and contained transcripts of parts of two conversations that the plaintiff had with a Fr. Eddie Cleary and three telephone calls she had with Fr. McMahon and a transcript of part of a telephone conversation with a female friend. The main body of the article contained references to the transcripts which were published on that date as follows:-

"Mrs. Herrity's socialising and questionable friendship with thirty four year old Fr. Cleary is revealed in thirteen hours worth of detailed phone conversations which were taped by a private detective hired by her suspicious husband, Liam. Although the bulk of the conversations are between Mrs. Herrity and Fr. McMahon, there are references made to Fr. Cleary and chats involving the young priest and Mrs. Herrity. In one conversation, Mrs. Herrity tells a female friend how she spent more than four hours one night drinking in Bewleys Café on Grafton St. with a priest, who was originally from Co. Tipperary. She said: 'I sat there and I didn't go home until about 1.00 in the morning. I sat there and I had three glasses of wine and had a ball with him, now I really did'. Mrs. Herrity also told her shocked friend that the easy going cleric knocked back the vodka. She said: 'I mean, he drinks vodka, he is a good drinker, you know. But I went up there and here is me thinking I am going to tell him my problems and he starts telling me all his problems. Oh I tell you, the laugh I had'."

8 The final article to which reference is made in the pleadings was that headed "Phone lover priest quits". That article did not publish any further transcripts of the plaintiff's telephone conversations but made the following comment:-

"Mr. Herrity, who is estranged from his wife, had become so suspicious of the relationship that he hired a private...