Kinsella v Kenmare Resources Plc

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine on the
• Judgment Date: 28 February 2019
• Neutral Citation: [2019] IECA 54
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 182 of 2015],Neutral Citation Number: [2019] IECA 54 [2015 No. 183]
• Date: 28 February 2019

BETWEEN/

DONAL KINSELLA

PLAINTIFF/RESPONDENT

- AND -

KENMARE RESOURCES PLC

AND

CHARLES CARVILL

DEFENDANTS/APPELLANTS

[2019] IECA 54

The Court

Irvine J.

Whelan J.

Baker J.

Neutral Citation Number: [2019] IECA 54

[2015 No. 182]

[2015 No. 183]

THE COURT OF APPEAL

Defamation – Damages – Proportionality – Plaintiff seeking damages for defamation – Whether the damages awarded to the plaintiff were so disproportionate as to be incapable of being upheld on appeal

Facts: The plaintiff, Mr Kinsella, following a trial before de Valera J and a jury in this defamation action which lasted for fourteen days in November 2010, was awarded the sum of €9m compensatory damages and €1m aggravated damages arising from a press release issued on the 10th July 2007 by the defendants, Kenmare Resources plc and Mr Carvill, such award of damages to be against the defendants jointly and severally, together with an order for costs. Execution on foot of the judgment was stayed subject to a condition that the defendants would forthwith pay to Mr Kinsella the sum of €500,000 on account of the damages award. The defendants appealed the whole of the judgment and order of the High Court. The Notice of Appeal sought an order directing a full retrial in the High Court or in the alternative an order quashing the award of damages and if necessary a consequential order directing that Mr Kinsella repay the said sum of €500,000 paid to him on account. Mr Kinsella, by Notice of Cross Appeal dated the 3rd April 2012, cross-appealed the determination of de Valera J that the publication of the press release occurred on an occasion of qualified privilege and that he should not in the circumstances have permitted any question to go to the jury in respect of the issue of malice deriving from that determination. As the result of the trial would have been the same even had the determination on the question of qualified privilege been made in favour of Mr Kinsella, the Notice of Cross Appeal simply sought an order granting the cross appeal with costs and affirming the decision of the jury. The grounds of appeal were as follows: (a) that the finding of fact by the jury that the publication of the press release was defamatory of Mr Kinsella and that this finding was not open to the jury on the evidence before it; (b) that the publication of the press release occurred on an occasion of qualified privilege; (c) that the trial judge misdirected the jury regarding the issue of malice; and (d) that the damages awarded to Mr Kinsella were so unreasonable and/or irrational and/or unjustified and/or disproportionate as to be incapable of being upheld on appeal.

Held by the Court of Appeal (Irvine J) that: (i) the defendants had not established the existence of any circumstances which would justify the Court interfering with the finding of the jury as to the meaning of the press release and its determination that it was defamatory of Mr Kinsella; (ii) there was no serious error in the manner in which de Valera J charged the jury regarding the meaning of the press release; (iii) the High Court judge erred in law, on the facts of this case, in concluding that the publication of the press release took place on an occasion of qualified privilege; (iv) the award of €9m compensatory damages in respect of the libel established by Mr Kinsella must be set aside as disproportionate, unjust and unfair in circumstances where it was satisfied that no reasonable jury could have considered that an award of that magnitude was necessary to compensate him in respect of the injury which he sustained and in order that he might re-establish his reputation; (v) the manner of Mr Kinsella’s cross-examination did not justify the trial judge leaving open to the jury the possibility of an award of aggravated damages, and for that reason the award of €1M made in respect of aggravated damages must be set aside; (vi) it favoured reassessing the damages to be awarded to Mr Kinsella rather than remitting the proceedings to the High Court for a rehearing on the damages issue; (vii) an award of damages in the sum of €250,000 would be just and fair compensation for the wrong visited upon Mr Kinsella as a result of the press release.

Irvine J held that she would set aside all orders for damages made by the jury and would substitute in their stead an award of general damages in the sum of €250,000, for which the defendants would be jointly and severally liable.

Appeal allowed.

JUDGMENT of the Court delivered by Ms. Justice Irvine on the 28th day of February 2019

Introduction and Meaning of Press Release.

Written by Baker J. and adopted by the Court.

1 Following a trial before de Valera J. and a jury in this defamation action which lasted for fourteen days in November 2010 the plaintiff, Donal Kinsella, was awarded the sum of €9m compensatory damages and €1m aggravated damages arising from a press release issued on the 10th July 2007 by the defendants (‘the Press Release’), such award of damages to be against the defendants jointly and severally, together with an order for costs. Execution on foot of the judgment was stayed subject to a condition that the defendants would forthwith pay to Mr. Kinsella the sum of €500,000 on account of the damages award.

2 The defendants, Kenmare Resources plc and Mr. Charles Carvill (hereinafter collectively ‘Kenmare’), have appealed the whole of the judgment and order of the High Court. It should be said that Kenmare and Mr. Carvill have at all times been represented by one legal team, have filed a single Notice of Appeal and have filed one set of legal submissions said to apply to both appellants. The Notice of Appeal seeks an order directing a full retrial in the High Court or in the alternative an order quashing the award of damages and if necessary a consequential order directing that Mr. Kinsella repay the said sum of €500,000 paid to him on account.

3 Mr. Kinsella, by Notice of Cross Appeal dated the 3rd April 2012, cross-appealed the determination of de Valera J. that the publication of the Press Release occurred on an occasion of qualified privilege and that he should not in the circumstances have permitted any question to go to the jury in respect of the issue of malice deriving from that determination. As the result of the trial would have been the same even had the determination on the question of qualified privilege been made in favour of Mr. Kinsella, the Notice of Cross Appeal simply seeks an order granting the cross appeal with costs and affirming the decision of the jury.

4 The grounds of appeal may conveniently be divided into a number of subheadings as follows:

(a) that the finding of fact by the jury that the publication of the Press Release was defamatory of Mr. Kinsella and that this finding was not open to the jury on the evidence before it (the meanings ground);

(b) that the publication of the Press Release occurred on an occasion of qualified privilege (the qualified privilege ground);

(c) that the trial judge misdirected the jury regarding the issue of malice (the malice question); and

(d) that the damages awarded to Mr. Kinsella were so unreasonable and/or irrational and/or unjustified and/or disproportionate as to be incapable of being upheld on appeal (the damages question).

5 Before considering the grounds of appeal I first set out the broadly undisputed facts.

Background

6 Mr. Kinsella was a founding member and director of Kenmare Resources plc, a public limited company with broad national and international business in the mining industry. At the time of the publication of the Press Release the subject matter of the claim, Mr. Kinsella was a director of Kenmare, its deputy Chairman and Chairman of its Audit Committee.

7 Charles Carvill (‘Mr. Carvill’) was at all material times the Chairman of Kenmare.

8 The events giving rise to the proceedings commenced on the night of the 8th May 2007 in Moma, Mozambique where Mr. Kinsella and other members of the Board and officers of Kenmare were visiting a mining operation of the company.

9 Present on the evening in question was the Company Secretary, Miss Deirdre Corcoran, who was also Secretary to the Audit Committee of which Mr Kinsella was Chairman.

10 On the night of the 8th May 2007, Mr. Kinsella, who gave evidence that he was prone to sleepwalking and had consumed an amount of alcohol, presented himself naked on three occasions at the bedroom door of Miss Corcoran. Mr. Kinsella accepted that what had occurred constituted ‘misbehaviour’ on his part and he apologised to Miss Corcoran for any embarrassment or upset caused by the incident. An independent investigation conducted by Mr Norman Fitzgerald of O'Donnell Sweeney Evershed, a Dublin based firm of solicitors of repute, found the actions of Mr. Kinsella to be ‘irresponsible’ but that no sexual impropriety had occurred.

11 However, following the incident Miss Corcoran made it clear to Kenmare that she did not feel comfortable in her role as Company Secretary and Secretary of the Audit Committee working with Mr. Kinsella on an individual basis. Consequently, Kenmare requested that Mr. Kinsella retire from his role as Chair of the Audit Committee, although he was not asked to vacate his role as a member of the Committee or other offices he held in Kenmare.

12 A dispute arose between Mr. Kinsella and Kenmare following the request that he step aside from his role as Chair of the Audit Committee. Mr. Kinsella enlisted the help of a journalist friend, Mr. John Kierans, whom he invited to contact Ms. Corcoran in the hope that the threat of publicity would bring an end to the internal issue and that the likely publicity would encourage Ms. Corcoran and Kenmare to change their stance.

13 Mr. Kierans, the then editor of the Irish Daily Mirror newspaper, contacted Kenmare and, under threat of apprehended publicity, Kenmare issued the Press Release the subject of the...