Hill v Cork Examiner Publications Ltd

• Jurisdiction: Ireland
• Judge: MR JUSTICE FRANCIS D MURPHY
• Judgment Date: 14 November 2001
• Neutral Citation: [2001] IESC 95
• Court: Supreme Court
• Docket Number: [S.C. No. 335 of 2000]
• Date: 14 November 2001

HILL v. CORK EXAMINER PUBLICATIONS LTD

Between:

Finbarr Hill

Plaintiff/Respondent

AND

Cork Examiner Publications Ltd

Defendant/Appellant

[2001] IESC 95

RECORD NO: 335/2000

THE SUPREME COURT

Abstract:

Defamation - Libel - Media - Appeal - Evidence - Prisons - Detention - Damages - Subsequent clarification of article - Whether finding of jury erroneous and contrary to evidence - Whether damages awarded by jury perverse and contrary to evidence - Whether trial judge should have permitted evidence of plaintiff's previous conduct.

The plaintiff had been serving a sentence in Cork jail imposed for assault occasioning actual bodily harm. The plaintiff had been photographed whilst a prisoner by the defendant. The defendant had proceeded to publish the photograph of the plaintiff in his cell along with an article which included details on "C wing prisoners" and stated that C Wing prisoners were child molesters, sexual offenders or were incarcerated there for their own protection. The plaintiff initiated proceedings claiming he had been libelled by the resulting photograph and article. The action was heard before a judge and jury. The jury found that the plaintiff had been libelled and awarded him £60,000 in damages. The defendant appealed on a number of grounds. It was contended that the finding of the jury as to the impression the article created was erroneous and contrary to the evidence. In addition the defendant argued that the trial judge had imposed an excessive limitation on the evidence that could be adduced concerning the offence the plaintiff was serving a sentence for. It was also alleged that the trial judge had misdirected the jury with regard to the inferences that could be drawn from the article and also in regard to the absence of the plaintiff's consent to his being photographed. It was also submitted that the award of £60,000 was perverse and contrary to the weight of evidence.

Held by Mr. Justice Murphy in delivering judgment (Murray J and McGuinness J agreeing) and dismissing the appeal. The jury having read the article were entitled to conclude that the plaintiff had been imprisoned as a sexual offender or as an offender that had to be segregated from the rest of the prison population. The trial judge had emphasised in his charge to the jury that all matters of fact were to be decided by the jury. The damages of £60,00 was a substantial sum. The figure awarded was not so disproportionate to the injury sustained by the plaintiff that it should be set aside. The appeal was dismissed.

1 MR JUSTICE FRANCIS D MURPHY DELIVERED THE 14TH DAY OF NOVEMBER, 2001 [nem diss]

2 On the 17th day of November, 2000, Barr J ordered that Finbarr Hill, the above named Plaintiff/Respondent, (Mr Hill) should recover from the Cork Examiner Publications Limited, the above named Defendant/Appellant (the Examiner) the sum of £60,000 as damages for a defamatory article published by the Examiner of and concerning Mr Hill together with the costs of the proceedings. It is from that judgment award and order that the Examiner appeals to this Court.

3 The background to these proceedings is as follows. On the 5th day of July, 1994, Mr Hill pleaded guilty to a charge of occasioning actual bodily harm contrary to s. 47 of the Offences Against the Person Act, 1861, on which he had been indicted, and on the 25th of July, 1994, it was ordered that he be imprisoned on that charge for the term of three years from the 6th day of July, 1994, subject to the provision that such sentence should be reviewed on the 11th January, 1996. Subsequent to his imprisonment the Examiner, with the permission of the relevant authorities, decided to publish an article on Cork jail where Mr Hill was imprisoned. A journalist and photographer in the employment of the Examiner visited the prison. The journalist obtained certain information and the photographer took a number of photographs including a photograph of the cell occupied by Mr Hill. It appears that the reason for photographing the particular cell was that it was kept in a clean condition by Mr Hill. It also contained a number of posters which might have been expected to give added interest to the publication. There is some dispute as to how it came about, but Mr. Hill was undoubtedly photographed in his cell and that photograph was published in an article published in the Examiner newspaper on the 25th day of October, 1995, under the headline "Isolation of Cork Jail's C Wing". In the article it was stated that C Wing prisoners were child molesters, sexual offenders or incarcerated there for their own protection.

4 By plenary summons issued on the 17th day of December, 1995, Mr Hill instituted proceedings against the Examiner claiming damages for libel. It was contended in the statement of claim subsequently delivered that the article published by the Examiner and/or the juxtaposition of the accompanying photographs meant, and were understood to mean that the Plaintiff was a sexual offender; a child molester, rapist or otherwise that he was a person who was dissolute and of criminal character. In their defence the Examiner denied that the article bore or was understood to bear the meaning attributed to it by Mr Hill and furthermore the Examiner denied that the Plaintiff had been injured in his credit or his reputation. It was expressly asserted by the Examiner that Mr Hill was a man of worthless reputation having been convicted of a number of criminal offences. The matter was heard before Mr Justice Barr and a jury on the 15th and 16th of November, 2000. Mr Hill and his father, Denis in addition to four other witnesses were called on behalf of the Plaintiff. No witnesses were called on behalf of the defence. At the conclusion of the trial the following questions were put to the jury and answered by them as follows:-

"QUESTION 1: Would a reasonable reader of the article complained of have been left with the impression that the Plaintiff was at the time of publication one of those incarcerated in that part of Cork prison which was at that time reserved for sexual offenders, child molesters and offenders segregated from the rest of the prison population in the interest of their own safety?

ANSWER: Yes.

QUESTION 2: If the answer to question 1 is in the affirmative was the Plaintiff thereby libelled?

ANSWER: Yes.

QUESTION 3: If the answer to question 2 is in the affirmative assess damages:

ANSWER:£60,000."

5 From that award and the order made pursuant thereto the Examiner appeal to this Court by notice dated the 15th day of December, 2000, which set out seventeen grounds of appeal. However, Mr John Gordon, SC, on behalf of the Examiner condensed or grouped the grounds of appeal under four headings, namely:

6 2 "1 That the finding of the jury as to the impression which the article would have created on the reasonable reader was erroneous and contrary to the evidence adduced.

7 2 That the trial Judge erred by imposing an "excessive limitation" on the evidence that the Defendant was permitted to adduce in relation to the offence in respect of which the Plaintiff was serving a sentence at the time of publication of the article.

8 3 That the trial Judge misdirected the jury on a variety of issues but in particular in relation to:-

9 a (a) the inferences which should be drawn from the article and the gravity of the implication that Mr Hill was a sexual offender and

10 b (b) the absence of the Plaintiff's consent to his being photographed in the cell or such photograph being used in the context of the proposed article.

11 4 That the award of a sum of £60,000 was perverse and contrary to the weight of evidence."

12 Counsel on behalf of the Examiner drew attention to the fact that the article in question related to the prison as a whole: that it referred to a total population of 230 prisoners as distinct from the 14 sex offenders incarcerated in C Wing. Indeed the article referred to different categories of prisoners including those convicted of murder, manslaughter, drug offences and larceny as well as sex offences. Again, attention was drawn to the fact that three of the four photographs accompanying the article related to the persons or places not particularly connected with C Wing. On the other hand there was no doubt that the article was entitled "Isolation of Cork Jail's C Wing" and that the subheading refers to "Cork Prison's Prison Within a Prison". Perhaps it would be correct to say that about one third of the article did focus on sex offenders and their situation in the prison. I am fully satisfied that the jury having considered the article as a whole were entitled to conclude that a reasonable reader of the article would have been left with the impression that the Plaintiff was at the time of the publication one of those incarcerated in that part of Cork prison which was reserved for sex offenders, child molesters and offenders segregated from the rest of the prison population in the interests of their own safety. I believe that that question was properly left to the jury and I am reinforced in that opinion by the...