Hilliard v Penfield Enterprises Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Gannon
• Judgment Date: 02 March 1990
• Neutral Citation: 1990 WJSC-HC 768
• Court: High Court
• Docket Number: No. 10 MCA/1990,[1990 No. 10 M.C.A.]
• Date: 02 March 1990

HILLIARD v. PENFIELD ENTERPRISES LTD

IN THE MATTER OF AN INTENDED PROSECUTION FOR CRIMINAL LIBEL

AND IN THE MATTER OF THE DEFAMATION ACT 1961 SECTION 8

APPLICATION OF

ELIZABETH HILLIARD

APPLICANT

AND

PENFIELD ENTERPRISES LIMITED AND JOHN MULCAHY AND PATRICK PRENDEVILLE

RESPONDENTS

1990 WJSC-HC 768

No. 10 MCA/1990

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Offence

Libel - Newspaper - Prosecution - Commencement - Prerequisite - Permission of the High Court - Relevant considerations - Permission refused - Spiteful and wounding attack on the deceased under the guise of a commentary on his funeral - Article lacked the gravity in law which would require prosecution for a criminal offence - (1990/10 MCA - Gannon J. - 2/3/90)1990 1 I.R. 138

|Hilliard v. Penfield Enterprises Ltd.|

Citations:

LAW OF LIBEL AMENDMENT ACT 1888 S8

GALLAGHER V INDEPENDENT NEWSPAPERS UNREP HIGH FINLAY 3.7.78

GOLDSMITH V PRESSDRAM 1976 3 WLR 191

R V ENSOR 1887 3 TLR 366

REG V LABOUCHERE 1884 LR 12 QB 320

R V WICKS 1936 1 AER 384

GLEAVES V DEAKIN & ORS 1979 2 WLR 665

DEFAMATION ACT 1961 S9

DEFAMATION ACT 1961 S10

DEFAMATION ACT 1961 S11

DEFAMATION ACT 1961 S12

REX V TOPHAM 4 TR 126

R V CRITCHLEY 4 TR 129n

R V MEAD 4 JUR 1014

DEFAMATION ACT 1961 S8

CRIMINAL LAW PROCEDURE ACT 1967

COURTS OF JUSTICE ACTS 1924–1961

DEFAMATION ACT 1961 S6

R V GREGORY 8 AD & E 907

R V LATIMER 15 QB 1077

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

1 Judgment of Mr. Justice Gannon delivered the 2nd day of March, 1990.

2 This is an application by Mrs. Elizabeth Hilliard on notice to the above-named Respondents pursuant to Section 8 of the Defamation Act, 1961for leave to commence a criminal prosecution for the publication of a libel in a newspaper unless cause to the contrary be shown by the Respondents. Section 8 of the Defamation Act, 1961is as follows:-

"No criminal prosecution shall be commenced against any proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge of the High Court sitting in camera being first had and obtained, and every application for such order shall be made on notice to the person accused, who shall have an opportunity of being heard against the application."

3 The newspaper in which it is alleged the libel was published is the edition for the 26th January 1990 of a magazine named "The Phoenix". It has been agreed by the Applicant and the Respondents, and I have been so requested, that my decision on this application be given in open Court.

4 The application is grounded upon an Affidavit of the Applicant sworn on the 12th of February 1990. In it she deposes to facts many of which can only be based upon information received, and so require better evidence in proof should this be required upon a prosecution. She states the facts requisite to show that the magazine is a newspaper as defined in the Defamation Act, 1961, and that the first Respondent is the publisher, that the second Respondent is the proprietor, and that the third Respondent is the editor. She states her sources of information of these essential facts sufficiently to indicate they are capable of proof in the event of a prosecution being permitted. She exhibits a copy of the magazine containing the matter published of which she complains. The article, she says, contains a number of false statements about her recently deceased husband which she says impute to him criminal activity of a subversive nature more than ten years ago. She says that the effect of the publication has been to deprive her and her infant daughter of benefits, which otherwise would have accrued, by reason only of her and their relationship to a person so infamous as is depicted in the article. The benefits to which she refers were expected from, among others, persons of public importance, because of the high esteem they had for her husband. She further complains that the manner in which the falsehoods are expressed, and the intervals of time involved when related to the true nature and circumstances of her husband's vocation show a manifest malicious intention not only to vilify her husband but also to cause personal pain and damage to herself and her daughter and, through their association with the deceased, to hold them up to public odium and contempt. She also claims that the article by reason of its content and manner of expression has provoked anger and resentment in persons who, out of their respect for her husband, would have sought and afforded assistance for her and for her daughter. From the extent and the breadth of his activities, social, sporting and clerical, she seeks to demonstrate the very wide public interest affected by his tragic death and affected by the scurrilous account in the article purporting to relate to the obsequies and funeral service.

5 I do not find it necessary, nor do I propose, to quote the article nor any extract from it. I have read the article and consider it to be so scurrilous and contrived in its presentation of dissociated persons and events as to arouse feelings of revulsion towards the author as well as vilifying the subject, namely the Applicant's deceased husband. It is difficult to believe that either of the two individual Respondents could stoop so low as to present or adopt such a mean, spiteful and wounding attack upon a deceased under the guise of a commentary on his funeral. In my opinion there is nothing in the article or in the apparent circumstances of its publication which could in any, or any colourable, way be for the public benefit. It would be impossible to describe a libel which accuses a person of having been twenty years ago an intelligence officer for the I.R.A. and of providing contacts to lead to massive bank robberies, or of setting fire to houses and cars on behalf of the I.R.A. as being of a trivial character. A libel of the nature which this article is can only be described as most serious in the nature of the defamation. I would entertain some doubt as to whether the punishments provided in Sections 10, 11, or 12 of the Defamation Act, 1961would indicate adequately the seriousness of such a libel in the event of prosecution to conviction.

6 It has been pointed out by Counsel on this application that there is a dearth of legal authorities which can afford a guide to the application of Section 8 of the Defamation Act, 1961, or of Section 8 of the Law of Libel Amendment Act, 1888 (51 and 52 Vic. c. 64) which it repealed. Apart from substituting the words "of the High Court sitting in Camera" for the words "at Chambers" the wording of the Irish statute corresponds with that of the English statute. However I have had the advantage of being furnished with a typed authentic copy of a Judgment given by Finlay, P. (as he then was) upon an application under Section 8 of the Defamation Act, 1961by Eddie Gallagher delivered on the 3rd of July 1978. I have been assisted also by a reference in argument to the Judgment of Wien, J. of the Queen's Bench Division in Goldsmith -v- Pressdram 1976 3 W.L.R. 191 and to the earlier reports of R. -v- Ensor (1887) 3 T.L.R. 366 and of Reg. -v- Labouchere(1884) L.R. 12 Q.B. 320 and of R. -v- Wicks 1936 1 All E.R. 384 and also to the later report of Gleaves -v- Deakin & Ors. 1979 2 W.L.R. 665. Having considered these same English authorities other than the last mentioned, the learned President summarized certain principles and set out in enumerated paragraphs the following summary after making reference to the Judgment in the Goldsmith case.

"Principles are enunciated in that case though the learned Judge in his Judgment expressly renounced any intention to set out all the principles applicable to an application under section 8 of the 1888 Act on the basis that every individual case required the exercise of a separate discretion. The principles he did set out may thus be summarized."

(1) Firstly the applicant must establish a clear prima facie case in the sense that it is a case which is so clear at first sight that there is beyond argument a case to answer if the matter goes before a Criminal Court.

(2) The libel must be a serious one, so serious that it is proper for the criminal law to be invoked.

(3) Although it may be a relevant factor that the libel is unusually likely to provoke a breach of the peace that is not a necessary ingredient.

(4) The question of the public interest must be taken into account on the basis that the Judge should ask himself the question: does the public interest require the institution of criminal proceedings?"

7 The President further says

"With one qualification I would be prepared to accept as a persuasive sound precedent the principles which I have summarized as being contained in the Judgment in Goldsmith -v- Pressdram Limited and Others".

8 The one qualification which he mentions later, relates to the constitutional guarantee of personal rights which of course must be personal to a living person. It need not be considered at this hearing. In making this summary the learned President was clearly adopting and signifying his agreement with the Judgment of Wien, J. in the Goldsmith case. There are a few sentences in that Judgment which I would like to quote as having my respectful approval. In the Weekly Law Reports to which I have already referred the learned High Court Judge is quoted as follows at page 195:

"All the argument in this case has turned on how my discretion should be exercised. I have been invited by counsel on both sides to lay down principles for the guidance of others who may have to decide this somewhat difficult question. I decline to lay down principles for the guidance of others for that would mean that by so doing I would curtail the discretion that any judge might have in the future. The very essence of a discretion is that it...