Kane v Mulvany

• Jurisdiction: Ireland
• Judgment Date: 08 May 1866
• Date: 08 May 1866
• Court: Common Pleas Division (Ireland)

Com. Pleas.

Coram MONAHAN, C. J., and KEOGH, J. Reported by Valentine J. Coppinger, Esq., Barrister-at-Law.

KANE

and

MULVANY

Popham v. PickburnENR 7 H. & N. 891.

Gathercole v. MiallENR 15 M. & W. 319.

Davison v. DuncanENR 7 E. & B. 229.

Cox v. FeeneyENR 4 F. & F. 13; see judgment of Cockburn, C. J., p. 19.

Walker v. BrogdenENR 19 C. B. N. S. 65.

Rex v. FisherENR 2 Camp. 563.

The King v. Oƒ€™Brien C. & Alc. 128.

Hoare v. SilverlockENR 9 C. B. 20.

Saunders v. MillsENR 6 Bing. 213.

Lewis v. LevyENR E. B. & E. 537.

Duncan v. ThwaitesENR 3 b. & C. 556.

Rex v. CreeveyENR 1 M. & S. 273.

Delegal v. HighleyENR 3 Bing. N. C. 950.

Helsham v. BlackwoodENR 11 C. B. 111.

Morrow v. Mƒ€™Gaver Ir. C. L. R., 579.

Brabazon v. Potts 8 Ir. Jur., N. S., 6.

Cooper v. Lawson 8A. & E. 746.

Earl of Lucan v. SmithENR 1 H. & N. 481.

Clinton v. Henderson 13 Ir. C. L. R., App., 53.

Nixon v. HarveyUNK 8 Ir. C. L. R., 446.

Campbell v. SpottiswoodeENR 3 B. & S. 769.

Paris v. LevyENR 9 C. B. N. S. 342.

Kelly v. Tinling 14 W. R. 51.

Lake v. KingENR 1 Wms. Saund. 131, b.

Edwards v. BellENR 1 Bing. 403.

White v. TyrrellUNK 5 Ir. C. L. R. 498.

Cooper v. Lawson 8 A. & E. 746.

Earl of Lucan v. SmithENR 1 H. & N. 481.

Clinton v. Henderson 13 Ir. C. L. R., App. 53.

Walker v. BrogdenENR 19 C. B. N. S. 65.

Saunders v. MillsENR 6 Bing. 213.

Libel Fair Comment Court of Justice Conduct of Witness in Committee of the House of Lords sitting upon a Private Bill Privilege of the Press Pleading.

402 THE IRISH REPORTS. KANE v. MULVANY (1)*. Com. Pleas. LZel-Fair Comment-Court of Justice-Conduct of Witness in-Committee 1866. of the House of Lords sitting upon a Private Bill-Privilege of the Press April 26, 27. Pleading. May 8. The evidence of a witness given upon oath in a public court of justice is a matter of public interest and importance, and a legitimate subject for fair and bona fide comment. A. report of a libellous speech of counsel given without the evidence by which it was supported and without any object towards the prosecution of the cause, is not a report of the proceedings of a court of justice within the meaning of the privilege. A Committee of the House of Lords, when conducting an inquiry upon a matter referred to them, constitute a public court of justice, whose proceedings may be reported and commented on, The right to comment upon the public acts of public men is a right of every citizen, and is not the peculiar privilege of the press. The pleader to an action of libel is not bound to separate the facts upon which he relies from the inferences drawn from them. DEMURRER. The first count of the Summons and Plaint comÂÂplained that the Defendant falsely and maliciously published of, and concerning the Plaintiff, in the form of a written document, purporting to be a report of a speech addressed by Mr. Rodwell, Q. C., to a Committee of the House of Lords in reference to a bill which had lately been thrown out by the said Committee, the false, scandalous, malicious, and defamatory matter following, that is to say : " House of Lords Select Committee on the Dublin Trunk Connecting Railway (City Extension) Bill, Thursday, 6th of April, 1865: the Earl of Devon in the Chair. " Mr. Rodwell.-My Lords, before the clauses of the Dublin Trunk -Connecting Railway (City Extension) Bill are proceeded with, I wish to make an observation or two. Your Lordships will recollect that yesterday evening a gentleman was called by me alÂÂmost at the last moment ; he volunteered his evidence ; we were igÂÂnorant indeed that he was going to give it ; he made a statement to those who instruct me, that he could give evidence which would be (1) Coram MoNA.HAN, C. J., and Kum", J. * Reported by Valentine J. Coppinger, Esq., Barrister-at-law. COMMON LAW SERIES. most material to us, and stated that his company was friendly to us, and that they would look with favour upon our scheme as to the station. Your Lordships will recollect what took place when he was called, and I am here to say to your Lordships that we feel that we were most completely imposed upon by that gentleman as to the mode in which he gave his evidence before your LordÂÂships. Further, we have this fact in confirmation of our view, that when he was cross-examined he was cross-examined from instrucÂÂtions in my learned friend's (Mr. Palles') hands. This gentleman placed him self in the box as a material witness to the case; he had been in the room all the time, and, therefore, knew all the weak points of the case. Your Lordships will recollect the damaging evidence which he gave against us at last ; and what we purpose now to do is-and I will state to your Lordships what our course is going to be, in order that we may be acquitted of anything like disrespect to your Lordships, or dissatisfaction with the decision which your Lordships came to upon that evidence,-feeling that we were imposed upon, we are going to ask to have the Bill reÂÂcommitted, because we feel that the evidence which that gentleman gave was not correct in fact, and we had no means of meeting it, because it took us completely by surprise. It is not necessary for me to say more now upon that point. It will be only for the proÂÂmoters to move for the recommittal of the Bill. We thought that we ought not to do so without informing your Lordships that such was our intention, and the promoters are desirous of its being understood that this step will be taken, not because they feel any dissatisfaction with your Lordships' decision upon that evidence ;- we think that your Lordships were quite justified, after that eviÂÂdence, in the decision at which you arrived ;-but we say that we were imposed upon, and that that evidence was not the evidence with which we could. have left the case in your Lordships' hands, had we previously known that Mr. Kane was going to be called. I have only made these observations in order that your Lordships may distinctly understand the position in which we stand in relaÂÂtion to the Bill, and in relation to your Lordships' decision. " Chairman.---We thank you for the communication which you have made to us. Will you let us know upon what day you will 404 THE IRISH REPORTS. am. Pleas. apply for a recommittal of the Bill, because the House will rise to-, 1866. morrow ? BANE " Hr. Rodwell.-We will do so, my Lord. v. Chairman.-I am going out of town to-night. MIILYLNY. " Mr. Rodwell.-Due notice will be given, my Lord. " The Duke of Marlborough,.-You will not do anything before the House rises, I suppose. " Chairman.-I believe you must give three days' notice. " Mr. Rodwell.-We had only decided upon the course which I have indicated to your Lordship this morning ; we will take what steps we can ; but we only thought it our duty to inform your Lordships of what it is our intention to do. " Chairman.-We do not mean to imply any opinion as to what portion of the evidence weighed with us, or otherwise. " Mr. Rodwell.-No, certainly not, my Lord. " Mr. Palles.-In consequence of what my learned Mend, Mr. Rodwell, has stated, I wish, on the part of the Corporation of Dublin, to say one word as to the mode in which the paper which my learned friend has referred to was obtained ; and I mention this, because I think it is but fair to the parties, when an ex parte statement of this kind is made, that the answer should not be reÂÂserved for a future day. A few days before the bill came on, a conversation took place between the agent who instructs me, and the witness who has been referred to ; and, in consequence of that, a note of his evidence was taken down by Mr. Muggeridge, not in his presence, nor with his knowledge. Mr. Muggeridge said, that probably he would call him as a witness ; but when that document was put into my hands, I advised my clients not to call him as a witness against the Bill. He has supplied to me this statement as to matters which took place personally to himself : " A day or two before the meeting of the Committee on this Bill, I had a conversation with the solicitor for the promoters respecting the injury that would be done to the rere of my house in Talbot-street if the Bill passed ; and I told this also to the agent for the Corporation, who said they would examine me upon the subject. This took place before the agreement was come to with the Drogheda Company during the progress of the Bill in Committee COMMON LAW SERIES. 405 I was asked by the clerk of the agent to the Corporation to be Com. Pleas. sworn as a witness, which I refused unless compelled. Mr. Murphy, 1866. the counsel for the promoters, was present, and heard this. I never KexE gave any proof of my evidence, or saw it up to this time ; but v. during Mr. Rodwell's speech, and after the evidence was closed MIILVANY. on both sides, Mr. Murphy was talking about the Drogheda ComÂÂpany, and. asked if they were likely to use the station, if made. I said I was sure ; but remarked that it was now useless ; he said he would speak to Mr. Rodwell when he had done ; and I preÂÂsume that he did so, as I was called then as a witness ; but I did. not know anything of the questions put to me upon cross-examinaÂÂtion. My personal interests were in favour of the passing of the Bill.' " Of course your Lordship, if you wish it, will be at liberty to inspect this document. My learned friends have not seen it ; but I may state that the two most important questions which were put upon cross-examination were not taken from that document, for one of them, in reference to whether the line would pay, was suggested by an idea of my own, judging from the length of the line, and that it was not possible it should pay ; and the other, as to the extent of ground of the station, was suggested by an obserÂÂvation addressed to me by my learned. friend, Mr. O'Hara ; but that document was not seen by Mr. Kane. I think that this ex parte statement had better not have been made. " Murphy.--My Lords, as my...