Hynes-O'Sullivan v O'Driscoll

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,Henchy J.,McCarthy J.
• Judgment Date: 21 July 1988
• Neutral Citation: 1988 WJSC-SC 1301
• Court: Supreme Court
• Docket Number: [1985 No. 5369P]
• Date: 21 July 1988

HYNES-O'SULLIVAN v. O'DRISCOLL

HYNES-O'SULLIVAN

Plaintiff/

Appellant

and

O'DRISCOLL

Defendant/

Respondent

1988 WJSC-SC 1301

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

73/87

177/87

THE SUPREME COURT

Synopsis:

DEFAMATION

Libel

Publication - Privilege - Qualified privilege - Proof - Interest or duty of recipient in receiving libellous statement - Honest belief of defendant that recipient had such interest or duty - Whether there was adequate evidence of defendant's malice to nullify defence of qualified privilege and to require issue of libel being left to verdict of jury - The defendant was a solicitor who was retained by the husband in matrimonial proceedings in the High Court - The defendant decided that the plaintiff, a psychiatrist practising in Cork, was a necessary witness on behalf of the husband in those proceedings, but the plaintiff was unwilling to attend court in Dublin as such witness - The defendant caused a subpoena to be served on the plaintiff and a viaticum of #20 to be delivered to her - The plaintiff attended the court in Dublin on the day the action was due to be tried; the parties settled the action and the plaintiff returned home on the same day - The plaintiff subsequently claimed from the defendant payment of the sum of #300 in discharge of the plaintiff's fees for attending court - When so requested by the defendant, the plaintiff did not furnish particulars of how she had calculated that sum - On 3/6/82 the plaintiff wrote to the Incorporated Law Society and enquired whether the Law Society had issued any guidelines about the issue of subpoenas to professional people so as to enforce their attendance in court at short notice - In that letter the plaintiff gave her version of her dealings with the defendant and complained that he had acted in a reprehensible manner - She also sought the help of the Law Society in obtaining payment of the fees claimed by her, and stated that the defendant's request for details of the method by which those fees had been assessed was an insult to her professional integrity - The Law Society sent a copy of that letter to the defendant and asked for his comments on its contents - On 24/6 the defendant replied to the Law Society's letter and, in the course of his letter, the defendant accused the plaintiff of duplicity and described her as a person "who holds scant regard for professional ethics and even less for the solemnity of the law" - He also stated that, when he informed the plaintiff that he would be obliged to serve a subpoena on her to secure her attendance in court, she replied that if he did so she would send him a "sick note" - He also stated that the plaintiff had attempted to avoid service of the subpoena and that she was obsessed with the payment of her fees - At the trial of the plaintiff's action against the defendant, in which the plaintiff claimed damages for libel, there was evidence that she had made the reply about the sick note and that she had not disclosed her presence on an occasion when the subpoena server had called at her consulting rooms - On 25/6 the defendant sent to the Irish Medical Association a copy of his reply to the Law Society together with a covering letter in which the defendant complained (a) that the plaintiff was willing, either alone or in conspiracy with other members of the medical profession, to falsify a medical certificate, (b) that the plaintiff lacked integrity as demonstrated by the misleading complaint she had made against the defendant and (c) that the plaintiff had demanded exorbitant fees for her attendance in court in the matrimonial proceedings - The Irish Medical Association replied by stating that they had no function in relation to the defendant's complaints which should have been addressed to the Medical Council - On 13/7 the defendant wrote to the Medical Council in terms identical to those employed by him in his letter to the Irish Medical Association, and he enclosed a copy of his reply to the Law Society - At the trial of the plaintiff's action, the trial judge decided that the defendant's letters to the Law Society and to the Medical Council, and the enclosures, had been published to those recipient's on occasions of qualified privilege - The trial judge reached a similar conclusion in relation to the defendant's communications to the Irish Medical Association on the basis that, although that Association had no interest in receiving such communications from the defendant, the defendant had held an honest belief that the Association had such an interest when he sent the letters to them - The trial judge also decided that there was no evidence from which a jury could reasonably infer a probability of malice on the part of the defendant in sending the letters to the several recipients - Accordingly, the trial judge withdrew the plaintiff's action from the jury - The plaintiff appealed against the order of the High Court - Held, in allowing the appeal, that the defendant had taken no steps to ascertain whether or not the Irish Medical Association was the proper body to receive his complaints and that, accordingly, he could not establish that he had an honest belief that the Association had an interest or duty to receive the impugned communications - Held that the trial judge had erred in deciding that there was no evidence from which a jury could reasonably infer a probability of malice on the part of the defendant - Held that there should be a new trial of the plaintiff's action: ~Reilly v. Gill~ 85 I.L.T.R. 165 and ~Kirkwood Hackett v. Tierney~ [1952] I.R. 185 considered - ~Semble~: A defence of qualified privilege to an action based on the alleged publication of a libel cannot be founded solely on the honest belief of the defendant at the time of the publication that the person to whom the libel was published had a duty or interest to receive the impugned statement - Constitution of Ireland, 1937, Article 40 - (33, 177/87 - Supreme Court - 21/7/88) - [1989] ILRM 349 1989 IR 436

|Hynes-O'Sullivan v. O'Driscoll|

Citations:

WARING V MCCALDIN 1873 7 IR CL 288

JENOURE V DELMEGE 1891 AC 77

HEBDITCH V MACILWAINE & ORS 1894 2 QB 54

KIRKWOOD HACKETT V TIERNEY 1952 IR 185, 88 ILTR 17

REILLY V GILL 1946 85 ILTR 165

LONDON ASSOC PROTECTION OF TRADE V GREENLANDS LTD 1916 2 AC 15

TURNER V METRO MYER PICTURES LTD 1950 WN 83, 1950 1 AER 449

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.6.1

MOGUL OF IRELAND V TIPPERARY (NR) CO COUNCIL 1976 IR 260

CONSTITUTION ART 40.3.2

BEACH V FRESSON 1972 1 QB 14

WATT V LONGSDON 1930 1 KB 130

ADAM V WARD 1917 AC 309

HARRISON V BUSH 5 E & B 344

STUART V BELL 1891 2 QB 341

JAMES V BAIRD 1915 SC 510

BAIRD V WALLACE-JAMES 1916 LJHL 193

FLEMING LAW OF TORTS P454

POSSER LAW OF TORTS P792

(2ND) RESTATEMENT OF TORTS 594, 595

1 JUDGMENT delivered on the 21st day of July 1988by FINLAY C.J.[Griffin J. concurring]

2 This is an appeal brought by the Plaintiff against the dismiss of her claim for damages in the High Court.

3 The Plaintiff is a consultant psychiatrist holding appointments from the Southern Health Board and also engaged in private practice in Cork. The Defendant is a solicitor practising in Cork.

4 In May 1982 the Defendant was retained to act for the husband in matrimonial proceedings which were to be held in the High Court in Dublin. He was satisfied that the Plaintiff was a necessary and relevant witness to giveevidence on behalf of the husband with regard to examinations she had made of the wife some years previously.

5 The Defendant had before this occasion neither met nor had professional dealings with the Plaintiff.

6 At the Defendant's request his client spoke to the Plaintiff about attending as a witness and she requested that the Defendant should contact her.

7 Two telephone conversations then took place between the Plaintiff and the Defendant as a result of which the Plaintiff indicated that she was not prepared to travel to Dublin and give evidence in the case.

8 The Defendant caused a subpoena adtestificandum accompanied by a viaticum of £20 to be served on the Plaintiff and she did attend in Dublin at the Family Law Court on the morning of Tuesday, the 11th May 1982, the date fixed for the commencement of the hearing of thecase.

9 The case was settled after luncheon time without having commenced, and the Plaintiff was informed of this by the Defendant and returned home. Approximately a week later the Plaintiff submitted to the Defendant anaccountof her fees for attending Court as a witness, in the sum of £300.The Defendant wrote in reply seeking a breakdown of this figure, and to that request there was no response to him from the Plaintiff.

10 On the 3rd June 1982 the Plaintiff wrote to the Incorporated Law Society enquiring as to whether the Society had laid down any guidelines with regard to the issuing of subpoenas to professional people so as to enforce their attendance at Court at extremely short notice.

11 In that letter she set out her version of her dealings with the Defendant and complained that the Defendant had acted in a reprehensible fashion to cause her such harassment. She also sought the help of the Society in obtaining her fees, stating that the seeking by the Defendant of a breakdown of them was a further insult to her professionalintegrity.

12 The Law Society sent a copy of this letter to the Defendant and asked him for his comments on it.

13 On the 24th June 1982 the Defendant wrote a lengthy letter to the Law Society commenting on the letter whichthe Plaintiff had written and giving his version of the events leading to her attendance in court as a witness.

14 In the course of that letter the Defendant accused the Plaintiff of duplicity and described her as a person "who holds scant regard for professional ethics and even less for the solemnity of the law". He stated that when he informed the Plaintiff that he would be obliged to...