Kavanagh v The Leader and Another

• Jurisdiction: Ireland
• Judge: Chief Justice,Lavery J.
• Judgment Date: 04 March 1955
• Neutral Citation: 1930 WJSC-HC 398
• Court: High Court
• Date: 04 March 1955

1930 WJSC-HC 398

LAUERY

O'DALAIGH

KINGSHILL MOORE

Kavanagh v. The Leader & Another

KAVANAGH

v.

THE LEADER and ANOTHER

Chief Justice

Maguire concurring 4/3/1955

1 In this action the plaintiff, a well-known poet novelist and critic, claims damages for libel.

2 The words complained of are contained in an Article which appeared in "The Leader" of October 1952, under the title - "Profile, Mr. Patrick Kavanagh". It is pleaded that the Article as a whole is a libel. In addition a number of innuendoes are laid. In their defence both defendants who fought the action, viz, the publishers and the printers plead that the words are no libel. They also plead fair comment both in its straight forward form and in that of the “rolled-up” plea.

3 The jury have found that the Article as a whole and in its ordinary meaning is not defamatory. They have by direction of the Judge answered the questions relating to the innuendoes also in the negative. They were not asked a question on fair comment simpliciter and have not answered the question arising on the “rolled-up” plea.

4 The first question which has to be considered is whether the jury have acted unreasonably and perversely in finding that the article was not defamatory. It is clear that this Court has jurisdiction to set aside the verdict of a jury in a libel action on the ground that it is against the evidence and unreasonable. For this proposition the Irish case of:Mclnerney v The "Clareman" Co. Ltd, 1903, 2 I.R.375, is an authority and there are others. The judgment of Scrutton L.J. in: Broome v Agar 44 T.L.R. 339 contains what Lord Buckmaster in: Lockhart v Harrison 44 T.L.R. 794 described as a full and in his opinion "most accurate statement of the position". The appellant there seeking to set aside a verdict that words spoken of the plaintiff were only capable of a defamatory meaning asked for a new trial in which the question should again be submitted to a jury. Scrutton L.J. began his statement of the legal position by saying "Since Fox's Act, 32 Geo. III. c.60 it has been a commonplace of civil procedure that "libel or no libel is of all questions peculiarly one for the Jury per Lord Coleridge C.J. in:Saxby v Easterbrook, 3 C.P.D. 339 at 342. He goes on to review the cases which must be looked at to understand Fox's Act. "The Legislature" he says, "By Fox's Act, adopted the view of Mr. Justice Willes and negatived the view of Lord Mansfield and it has since been a fundamental principle that libel or no libel is for the jury." Again, "It is a long step to pass from the power of a Judge to withdraw the Case from a jury on the ground that he thinks that the words are not capable of a defamatory meaning to the position that if a Judge or Judges think that words are only capable of a defamatory meaning he or they can enter judgment for the plaintiff without a finding of the jury or direct the jury to find that the words are defamatory or keep ordering a new trial because the jury will not enter the verdict which the Judges think they ought to find." Applying this principle to the Case before him he says, "The Lord Chief Justice in the present Case when asked for a stay of execution refused saying - “The Case is “eminently one for the jury”. I think that he took the correct view. I might have given a different verdict but I am not the Tribunal to answer the question." He quotes with approval a statement in Odgers on Libel - "The proper course is for the Judge to define what is a libel in law and leave it to the jury to say whether the publication in question falls within that definition. And this is a question pre-eminently for the jury; whichever way they find the Court will rarely if ever disturb the verdict if the question was properly left to them." Scrutton L.J. goes on to say "I hesitate to say that a case may never arise for interference but I cannot think the present case is one. There are very few cases where a jury having found no libel the Court has interfered with their verdict."

5 The appellants accept the law to be as so clearly stated by Scrutton L.J. They point however to certain passages in the Article which they say are so obviously defamatory that they make this Case one of those rare and extreme cases in which a Court should hold that the verdict of no libel is perverse. Two passages in particular have been singled out as being clearly libellous, the first paragraph with its fanciful picture of the plaintiff “hunkering” on a bar stool in a public house and one of the later paragraphs which it is said conveys the meaning that his poem the Great Hunger was banned in this country.

6 In considering what view the jury might form of the first paragraph in the Article complained of it should be read as introductory to an Article in which the writer states his view that the plaintiff is a truly great poet who in "The Great Hunger" has written the greatest poem by an Irishman since Goldsmith's "Deserted Village". This high praise is foreshadowed at the outset where it is said that while the well-known line from Shelley's Adonais - "a pard-like spirit beautiful and swift" would not occur to one's mind as applicable to the plaintiff if one saw him hunkering on a bar stool surrounded by a group of adoring young poets and painters who hang upon his words and think that nothing like him is to be had on the Left Bank of the Seine - the line in truth is not inapplicable. While a jury might consider that it is injurious to the plaintiff's reputation to suggest that he might be observed in the surroundings described I am quite unable to accept the contention that they were coerced so to do.

7 The paragraph which is most suggested to be clearly libellous is that which it is claimed means that the plaintiff's great poem "The Great Hunger" was banned by the Irish Censorship Board. It would seem from his evidence that while the police visited him in connection with the poem and that copies were seized from the book-stalls in the City, it was not, in fact, banned. In line with the extraordinary praise lavished upon the poem the writer launches an attack upon the authorities for their action. The jury might take the view that what was said was not defamatory of the plaintiff but was a condemnation of the authorities who had taken action against him.

8 The plaintiff in his evidence explained why he objected to the Article.

9 It must be remembered moreover that the view of the plaintiff as to the meaning of the Article is not the test as to whether it is libellous or not. The test is what meaning was it calculated to convey to those to whom it was published. Furthermore the various parts of the Article singled out for attention should not be examined divorced from their context but must be considered in the light thrown upon them in their setting and surroundings.

10 In my view the jury were the proper tribunal to decide whether any of the passages referred to were defamatory of the plaintiff.

11 I turn now to the ground of appeal which concerns the direction of the learned Judge that the jury need not answer Questions Nos. 2 to 6 and the directions relative to these Questions which he gave at different stages of his summing up. These Questions related to what are called the innuendoes laid in the Statement of Claim. No attempt was made by evidence to establish the meanings laid as special meanings and the Judge in my opinion, quite rightly took the view that as there was no such evidence the jury were not entitled to find these meanings as special meanings. The jury however were entitled to attribute any of the meanings in the innuendoes to the words used if they found such meanings as part of the ordinary meaning of the words.

12 The learned Judge notwithstanding the strenuous opposition of Counsel for the defendants had accepted the contention that notwithstanding the absence of any evidence of circumstances which would give a special or extended meaning to the words he should let the Questions Nos 2 to 6 go to the jury.. Towards the close however he changed his mind. Having done so the simple course would have been to remove Questions 2 to 6 from the issue paper. The learned Judge preferred to direct the jury not to answer these Questions. The question is whether by adopting this course he may have left the jury under the impression that in considering the meaning of the language of the Article in its plain ordinary sense they must exclude any of the meanings mentioned in the Questions Nos. 2 to 6. To answer this it is necessary to examine the passages in the Summing-up of the learned Judge where he explains to the jury his change of view. The first of these passages is where he says:-

13 "Finally we have what the law calls innuendoes. This is only necessary when words do not primarily mean a particular thing. It might be ironically spoken. You have all seen examples where innocent words might be spoken in an offensive way. If you answer No. 1 "Yes" you may skip 2, 3, 4, 5, 6. You can forget all except the last two. You will then properly approach the Case on 1, 7, 8 Questions. I do not think the plaintiff has fulfilled his obligation to prove the extended meanings and we will leave this out. We will forget about Nos 3, 4, 5, 6. Come to No. 7."

14 It is submitted that when they were told to leave out the meanings as extended meanings they may have understood that they were not to consider the meanings or any of them as possible plain ordinary meanings of the Article. I find it difficult to believe having regard to the course of the trial that the jury would take such a view. The matter did not rest there as the learned Judge again dealt with the matter in a way which must have got rid of any such misconception if it arose.

15 The foreman of the jury having asked whether it was correct to assume that if the jury answered "No" to the first Question they would stop there but if their...