Hunter & Callaghan v Gerald Duckworth & Company Ltd & Blom-Cooper

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 31 July 2003
• Neutral Citation: [2003] IEHC 81
• Date: 31 July 2003
• Court: High Court

[2003] IEHC 81

THE HIGH COURT

[No. 8738P/1998]

[No. 8739P/1998]

HUNTER & CALLAGHAN v. GERALD DUCKWORTH & CO LTD & BLOM-COOPER

Between:

GERRY HUNTER

Plaintiff

and

GERALD DUCKWORTH AND COMPANY LIMITED and LOUIS BLOM COOPER

Defendants.

And

Between:

HUGH CALLAGHAN

Plaintiff

and

GERALD DUCKWORTH AND COMPANY LIMITED and LOUIS BLOM COOPER

Defendants.

Citations:

CONSTITUTION ART 40.6.1.I

CONSTITUTION ART 40.3

TREATY OF EUROPEAN UNION 1992 ART 6

TREATY OF EUROPEAN UNION 1992 ART 49

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

R V HICKEY & ORS 1997 EWCA CRIM 2028

TREATY OF EUROPEAN UNION 1992 ART 6.2

CONSTITUTION ART 40.6.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

HIBERNIA NATIONAL REVIEW, RE 1976 IR 389

O'BRIEN V MIRROR GROUP NEWSPAPERS LTD 2001 1 IR 1

IRISH TIMES V MURPHY 1998 1 IR 359 1997 2 ILRM 541

NEW YORK TIMES V SULLIVAN 376 US 254 (1964)

SPEISER V RANDALL 357 US 513 (1958)

CHURCH OF SCIENTOLOGY OF CALIFORNIA V JOHNSON-SMITH 1972 1 QB 522

KELLY V O'NEILL & BRADY 2000 1 IR 354 2000 1 ILRM 507 2000/11/4219

CULLEN V TOIBIN 1984 ILRM 577

KEARNEY V MIN JUSTICE 1986 IR 116

MILLS V ALABAMA 384 US 214 (1966)

TERMINIELLO V CHICAGO 337 US 1 1949

CHAPLINSKY V NEW HAMPSHIRE 315 US 568 (1941)

CONSTITUTION ART 46

DE HAES & GIJSELS V BELGIUM 1998 25 EHRR 1

BLADET TROMSO & STENSAAS V NORWAY 1999 29 EHRR 125

HANDYSIDE V UK 1979– 1980 1 EHRR 737

NILSEN & JOHNSEN V NORWAY 2000 30 EHRR 878

SUNDAY TIMES V UK 1979– 1980 2 EHRR 245

CONSTITUTION ART 50

DE ROSSA V INDEPENDENT NEWSPAPERS 1999 4 IR 432

MURPHY V IRTC 1997 2 ILRM 467

HYNES-O'SULLIVAN V O'DRISCOLL 1988 IR 436 1989 ILRM 349

DESMOND V GLACKIN 1993 3 IR 1

O LEIGHLIS, RE 1960 IR 93

MILOLAVSKY V UK 1995 20 EHRR 442

REYNOLDS V TIMES NEWSPAPER LTD 1998 3 AER 961

GATLEY ON LIBEL & SLANDER 9ED

MCMAHON & BINCHY THE LAW OF TORTS 3ED

FOLEY V INDEPENDENT NEWSPAPERS 1994 2 ILRM 61

LINGENS V AUSTRIA 1986 8 EHRR 407

OBERSCHLICK V AUSTRIA 1995 19 EHRR 389

OBERSCHLICK V AUSTRIA (NO 2) 1998 25 EHRR 357

TORGEIRSON V ICELAND 1992 14 EHRR 843

PRAGER & OBERSCHLICK V AUSTRIA 1996 21 EHRR 1

THEOPHANOUS V HERALD & WEEKLY TIMES 1994 182 CLR 104

LANGE V AUSTRALIAN BROADCASTING CORPORATION 1997 145 ALR 96 1994 189 CLR 520

LANGE V ATKINSON 1998 3 NZLR 424

LANGE V ATKINSON 2000 1 NZLR 257

REYNOLDS V TIMES NEWSPAPER LTD 2001 2 AC 127

CONSTITUTION ART 46.1.1

HANRAHAN V MERCK SHARP & DOHME 1988 ILRM 629

W V IRELAND 1997 2 IR 141

CIVIL LIABILITY ACT 1961

O'BRIEN V KEOGH 1972 IR 144

M'PHERSON V DANIELS 1829 10 B & C 263 109 ER 448

ADAM V WARD 1917 AC 309 1916–1917 AER 157

HORROCKS V LOWE 1974 1 AER 665

BELL-BOOTH GROUP LTD V AG 1989 3 NZLR 148

BALFOUR V AG 1991 1 NZLR 519

SOUTH PACIFIC MANUFACTURING CO LTD V NEW ZEALAND SECURITY CONSULTANTS & INVESTIGATIONS LTD 1992 2 NZLR 282

SPRING V GUARDIAN ASSURANCE PLC 1995 2 AC 296

Abstract:

Defamation - Constitutional law - Freedom of expression - Right to protection of reputation - Whether constitutional guarantee to freely express opinions prevails over constitutional protection afforded to one's good name - Whether common law of defamation implements appropriate constitutional balance - Whether issue should be allowed to go to jury - Bunreacht na hÉireann, Articles 40.3 and 40.6.1 - European Convention on Human Rights, article 10.

the plaintiffs pleaded that they along with four others known as "The Birmingham Six" had been the victims of a miscarriage of justice in England. The first defendant was a publisher who published a booklet entitled "The Birmingham Six and Other Cases". The second defendant was the author of the said booklet. It was pleaded that the booklet was maliciously printed and was defamatory of the plaintiffs. In particular it was complained that words contained therein, either in their natural and ordinary meaning and/or by way of inference and innuendo, meant that the quashing of the plaintiffs' convictions did not imply that the plaintiffs were entitled to be presumed innocent and were defamatory in seeking to deprive the plaintiffs of the presumption of innocence arising from the quashing of their convictions. The second defendant made a preliminary application that the case should not be allowed go to the jury. The second defendant submitted that the booklet contained an analysis of English law and that he was entitled to publish it as exercising his right to freedom of expression including the right to express opinions, in particular, upon the legal issues before the Court of Appeal relating to the Birmingham Six case, and advocate ideas on matters of public interest protected, inter alia, by Articles 40.3 and 40.6.1 of Bunreacht na hÉireann and Article 10 of the European Convention on Human Rights. He submitted that an award of damages in a libel suit represented a penalty on speech and raised the deterrent or chilling influence upon the exercise by citizens of their constitutional right to freely express their opinions.

Held by Ó Caoimh J in refusing the defendant's application that he had no case to answer on the pleadings and allowing the proceedings to go to a jury for its determination that it would be virtually impossible to define a right of a universal nature that would accommodate all cases where a contest existed between a claim of right to freedom of expression and a right to the protection of one's reputation. However, the law should attempt to balance the constitutional rights to freedom of expression and the right to one's reputation. Insofar as publications which largely comprise expressions of opinion are impugned by way of a claim in defamation, any issues arising could be addressed under the law as to fair comment but that law should be construed liberally to afford a proportionate right to freedom of expression of opinion, even when such expressions could give offence. It was preferable that the law in relation to defamation, where the court is asked to balance the competing constitutional rights of freedom of expression and the protection of one's reputation, develop on a case by case basis having regard to the Constitution and the Convention which could inform the court in its approach to the interpretation of the Constitution. It had to be assumed that the courts in addressing individual defamation cases would have regard to the circumstances of each case and the nature of the rights pleaded by the parties in light of the Constitution and would be able to assess whether the right to freedom of expression contended for in any case was such that a defence of privilege or fair comment having regard to the evidence in any given case could go to a jury. A judge could adequately deal with the requirements of the Constitution in reaching any such decision and, as circumstances ordain, in charging a jury.

1 Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 31st of July, 2003.

2 By order of this Court of the 31 ^st May, 2001 the second defendant was directed to set down for trial the following issues:

3 1. Whether the second named defendant in writing the booklet which is scheduled to the Statement of Claim is entitled by reason of Article 40.6.1 .i. and/or Article 40.3 of Bunreacht na hÉireann to the right to -express freely the statements, convictions, opinions and ideas therein and each and every one of them and to impart all the information therein with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute;

4 2. Whether the second named defendant as a citizen of the European Union in writing the said booklet was by reason of articles 6 and 49 of the Treaty establishing the European Union free to provide such professional services within the European Union and/or was free to exercise in the State his right of freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms made in Rome on 4 ^th November, 1950 to which the State is a signatory (hereinafter referred to as "the European Convention on Human Rights") with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute;

5 3. Whether the second named defendant in writing the said booklet is entitled by reason of Article 10 of the European Convention on Human Rights to the right to express freely the statements, convictions, opinion and ideas therein and each and every one of them to impart all the information therein with the result that the publication thereof cannot give rise to a cause of action in defamation at common law or under statute.

6 In the case of each of the plaintiffs it is pleaded in the Statement of Claim filed that the plaintiff in common with five other men known as "The Birmingham Six" was the victim of a miscarriage of justice in England arising out of the aftermath to the Birmingham pub bombing in 1974 in which atrocity upwards of 20 people were killed and injured. It is pleaded that the plaintiff Mr. Callaghan who resides in London is a published author and enjoys a wide reputation and that he has been widely written about in Irish newspapers and has appeared on the most popular radio and television programmes dealing with current affairs in Ireland. The first defendant is a publisher who published and distributed a booklet entitled "The Birmingham Six and Other Cases" and subtitled "Victims of Circumstances". The second defendant is the author of the booklet and is a Queen's Counsel.

7 It is pleaded that the booklet was maliciously printed, published and distributed of and concerning the plaintiff and that the publication is defamatory of the plaintiff. In particular it is complained that the following words either in their natural or ordinary meaning and/or by way of inference and innuendo meant that the quashing of the plaintiff's conviction did not...