Kehoe v Raidió Teilifís Éireann
| Jurisdiction | Ireland |
| Judge | Mr. Justice Bernard J. Barton |
| Judgment Date | 21 June 2018 |
| Neutral Citation | [2018] IEHC 340 |
| Docket Number | [2016 No. 1401 P.] |
| Court | High Court |
| Date | 21 June 2018 |
[2018] IEHC 340
[2016 No. 1401 P.]
THE HIGH COURT
Defamation – Concurrent wrongdoers – Civil Liability Act 1961 s. 35(1) – Plaintiff seeking damages for defamation – Whether the provisions of Civil Liability Act 1961 s. 35(1)(i) apply to the tort of defamation
Facts: The plaintiff, Mr Kehoe, brought defamation proceedings arising from a live broadcast by the defendant, Raidió Teilifís Éireann (RTE), of a current affairs radio programme, “Saturday with Claire Byrne” during which certain verbal exchanges took place between the presenter and two of the panel participants, Mr Costello and Councillor O’Broin. The statements about which the plaintiff complained were made by Mr Costello. The defence delivered incorporated a plea pursuant to s. 35(1) of the Civil Liability Act 1961. The object and effect of the plea was to fix the plaintiff with responsibility for the wrongful acts of Mr Costello, a statute barred defendant, so as to reduce by the extent of that responsibility the amount of damages, if any, the jury may award to the plaintiff. At the conclusion of the evidence agreement was reached between the parties on all but one of the questions which were to go to the jury. The question in dispute, proposed by the defendant, arose from the plea pursuant to s. 35(1) and read: “In the event you assess a sum for damages set out in question 5, you should proceed to determine what percentage, if any, of that sum that RTE should be held liable for and that percentage should be set out here_________.” The High Court was tasked by the parties with determining whether such a question or a question in similar terms should be included on the issue paper. The resolution of that issue was principally dependent on the answer to the following: (a) whether Mr Costello and RTE are concurrent wrongdoers; and, if so, (b) whether the provisions of s. 35(1)(i) apply to the tort of defamation. The plaintiff contended that the question should not be put at all because s. 35(1)(i) has no application to the tort of defamation; the plea on its face was bad in law. The defendant’s case was that the provision applies to all torts, including the tort of defamation; the plea was thus well founded.
Held by Barton J that, having applied Hickey v McGowan and Anor [2017] IESC 6 in so far as it was concerned with s. 35 and having had regard to the other relevant statutory provisions, the construction which the Court placed on s. 35(1)(i) was that the provision extends to all wrongs involving concurrent wrongdoing whether intentional or unintentional and thus captures all torts, including the tort of defamation. Barton J held that (a) and (b) should be answered in the affirmative.
Barton J held that the plea should go to the jury in the form of a question to be considered and decided by them either in the terms proposed by the defendant or in like terms as may be agreed between the parties.
Judgment approved.
These proceedings are brought in defamation and arise from a live broadcast by the Defendant of a current affairs radio programme, ‘ Saturday with Claire Byrne’ during which certain verbal exchanges which gave rise to these proceedings took place between the presenter and two of the panel participants, Joe Costello T.D and Councillor Eoin O”Broin. The statements about which the Plaintiff complains were made by Joe Costello and have been set out in the Statement of Claim. He was not joined as a Defendant nor were separate proceedings instituted within the period limited prescribed by s. 38 (1) of the Defamation Act 2009 (the Act of 2009). Accordingly, any claim the Plaintiff had against Joe Costello in respect of the impugned statements is now statute barred.
In these circumstances, the Defence delivered incorporates a plea pursuant to s.35 (1) of the Civil Liability Act, 1961, (the CLA), as amended. The object and effect of the plea is to fix the Plaintiff with responsibility for the wrongful acts of the Joe Costello, a statute barred defendant, so as to reduce by the extent of that responsibility the amount of the damages, if any, the jury may award to the Plaintiff. In short, s. 35 (1) (i) deems the liability of the statute barred defendant a form of contributory negligence which maybe pleaded against the Plaintiff by way of defence to his claim. The essence of the plea involves identifying the plaintiff with the responsibility for the wrongful acts of the statute barred defendant.
Identifications for the purposes of contributory negligence in general are governed by the provisions of s. 35 of the CLA. Subs. (1) (i) is concerned with identification in circumstances where the plaintiff's damage is caused by concurrent wrongdoers and where the plaintiff has permitted the claim against one or more of them to become statute barred.
The plea in this case had also been raised in respect of Eoin O”Broin but was abandoned by the Defendant in the course of hearing. He identified the Plaintiff by name on air but spoke out in his defence during the material exchanges, the substance of which has been relied on by the Defendant to meet the claim. The Plaintiff is a senior member of Sinn Féin in Dublin; he makes no complaint against his party colleague. The same cannot be said for Joe Costello who, without mentioning Plaintiff by name, uttered the remarks about which complaint is made and simultaneously published by the Defendant.
At the conclusion of the evidence agreement was reached between the parties on all but one of the questions which are to go to the jury; the questions agreed are:
1. Did the contents of the broadcast of the ‘Saturday with Claire Byrne’ programme of 24th October, 2015, taken as a whole, mean that:
(i) Nicky Kehoe is a senior member of the Army Council of the IRA?
Yes.
No.
(ii) Nicky Kehoe is a member of an illegal criminal organisation?
Yes.
No.
(iii) Nicky Kehoe controls the way in which Sinn Féin Councillors vote in meetings of Dublin City Council on behalf of the Army Council of the IRA?
Yes.
No.
(iv) Nicky Kehoe was involved in a deliberate attempt to control the functioning of a political party and to subvert the operation of Dublin City Council in order to further the aims of an illegal organisation?
Yes.
No.
(v) Nicky Kehoe is not a fit person to be involved in the democratic process?
Yes.
No.
2. If the answer to all parts of question 1 is ‘No’, then proceed no further.
3. If the answer to one or more parts of question 1 is ‘yes’, is the defendant entitled to the benefit of the defence of fair and reasonable publication?
Yes.
No.
4. If the answer to question 3 is ‘yes’, then proceed no further.
5. If the answer to question 3 is ‘no’, assess damages, including, if appropriate, aggravated damages, and write that amount of damages here.
The question in dispute, proposed by the Defendant, arises from the plea pursuant to s. 35 (1) of the CLA and reads:
In the event you assess a sum for damages set out in question 5, you should proceed to determine what percentage, if any, of that sum that RTE should be held liable for and that percentage should be set out here_________.
The Court is tasked by the parties with determining whether such a question or a question in similar terms should be included on the issue paper. The resolution of this issue is principally dependent on the answer to the following, (a) whether Joe Costello and RTE are concurrent wrongdoers and, if so, (b) whether the provisions of s. 35(1)(i), apply to the tort of defamation. The conclusion of the Court is that each of these should be answered in the affirmative for the reasons that follow.
The focus of contention between the parties centred on the nature of a defamation action and the applicability of the statutory provision on which the plea in question is founded. The Plaintiff contends that the question should not be put at all because s. 35(1)(i) has no application to the tort of defamation; the plea on its face is bad in law. The Defendant's case is that the provision applies to all torts, a priori this includes the tort of defamation; the plea is thus well founded..
Oral submissions, summarised later, were made on behalf of the parties from which it became immediately clear that there are a number of statutory provisions which have a direct or indirect bearing on the resolution of issue under consideration; the relevant provisions are set out below.
The relevant provisions of the CLA are contained in sections 2, 11, 12, 14, 34 and 35. Section 2 provides for interpretation generally. “ Wrong” is defined as meaning ‘ a tort, breach of contractor breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose act he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional’.” Wrongdoer” is defined as meaning ‘ a person who commits or is otherwise responsible for a wrong’. [emphasis added]
The legal concept of concurrent fault is a central feature of the CLA and is provided for in Part 3 of the act. Apposite to the argument on the issue is the observation that in the statute law of England and Wales and several other common law jurisdictions there are no provisions relevant to the plea corresponding to those contained in Part 3. It follows that case authority and commentaries by learned authors on the law of defamation in those jurisdictions relating in particular to judgements against joint and several tortfeasors must be viewed with this distinction in mind.
The meaning of concurrent wrongdoing and those who are to be considered concurrent wrongdoers is provided for by s. 11 as follows:
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