Kirkwood Hackett v Tierney

• Jurisdiction: Ireland
• Judgment Date: 01 January 1954
• Date: 01 January 1954
• Court: Supreme Court

Kirkwood Hackett v. Tierney.

WALTER KIRKWOOD HACKETT

Plaintiff

and

MICHAEL TIERNEY, Defendant (1)

Supreme Court.

Defamation - Slander - Accusation against university student of obtaining paying order by false pretences - Accusation made by President of University in the presence of the person holding office of secretory and bursar - Denial by defendant in his pleading that he spoke the words alleged - Denial by him to the like effect at trial - Plea of privilege - Inconsistent defences - Practice - Whether defendant obliged to elect at trial as between inconsistent defences - Whether occasion privileged - Malice - Evidence - Whether conduct of defendant on subsequent occasions evidence of existence of malice at time of speaking defamatory words - Onus of proof of honest belief - Damages.

The plaintiff who was a student at the university college of which the defendant was president, was in receipt of a maintenance grant of £334 per annum from the British Government to enable him to pursue an academic course leading to a degree in architecture. In accordance with the arrangements made between the College and the British Ministry of Education a paying order for the sum of £134 6s. 8d., being an instalment of the grant payable for the year, 1948-49, was received by the Registrar of the College in September, 1948. The plaintiff failed to pass the second university examination in architecture and the Registrar thereupon communicated with the Secretary to the Ministry and informed him that he would hold the paying order pending his further directions. Before a reply had been received to this letter the plaintiff called to the office of the College and requested delivery, and, through inadvertence, was put in possession, of the paying order which he subsequently lodged in his bank. The defendant later interviewed the plaintiff in the presence of the Secretary of the College (who was also Bursar thereof) who was present at the request of the defendant. In an action for damages for slander the plaintiff alleged that in the course of the interview the defendant charged him with having obtained the paying order by false pretences. The trial Judge, on the application of counsel for the plaintiff, directed the jury that the onus was upon the defendant to prove that he had an honest belief in the truth of the words spoken. The jury found that the words complained of had been spoken by the defendant; that they were defamatory and had been spoken without an honest belief in their truth and that they had been spoken maliciously. They assessed damages at £750.

The defendant appealed to the Supreme Court; the plaintiff cross-appealed on the ground that the trial Judge had misdirected himself in law in ruling the occasion to be privileged.

Held by the Supreme Court (O'Byrne, Murnaghan and Haugh JJ.; Maguire C.J. and Black J. dissenting) 1, that the occasion upon which the words were spoken was a privileged occasion; 2, that the trial Judge had misdirected the jury in instructing it that the onus of proof of honest belief rested upon the defendant; 3, that there was no evidence to support the jury's finding that the words were spoken maliciously.

The Court accordingly allowed the defendant's appeal, dismissed the plaintiff's cross-appeal, and directed that judgment be entered for the defendant.

Per O'Byrne J. (with whose judgment Murnaghan and Haugh JJ. agreed): The contention that no person is entitled to claim privilege in respect of alleged defamatory words unless he admits that the words were spoken is not well founded. The question whether an occasion is privileged depends upon the admitted and proved circumstances surrounding the alleged communication and there is no reason, in principle or on authority, for limiting the defence of privileged occasion to cases in which the defendant admits the speaking of the words.

per Black J.: In order to support a plea of privilege the person to whom defamatory words are spoken must have a particular, as distinct from a general, interest in hearing the words.

Capital and Counties Bank v. Henty, 7 App. Cas. 741, considered.Reilly v. Gill and Others, 85 I. L. T. R. 165, referred to.

Witness Action.

The plaintiff, Walter Kirkwood Hackett, was a student of architecture at University College, Dublin, of which College the defendant was President. The plaintiff, having served during the late war with the British Royal Air Force, had been granted an award by the British Ministry of Education to enable him to pursue a full-time course of studies at the College with a view to his obtaining a degree in architecture. The award, which took the form of payment of fees and a maintenance grant of £334 per annum, had been received by him during the years, 1946-47 and 1947-48. In accordance with the arrangement between the College and the British Ministry of Education a draft in favour of the the plaintiff for the sum of £134 6s. 8d. was received by the Registrar of the College in the month of September, 1948, in respect of an instalment of the grant for the year, 1948-49. The plaintiff had, however, failed to pass the second University examination in architecture. The Registrar of the College reported this fact to the Ministry of Education; in doing so he pointed out that by reason of his failure to pass the examination, the plaintiff's course would be interrupted for one year. He also informed the Ministry that he was holding the draft to await their advice as to whether it was proposed to continue the grant.

On the 15th October, 1948, and before a reply had been received by the Registrar, the plaintiff, although he was aware that his failure to pass the examination would prevent his proceeding with his studies for the third year, called at the office of the College for the draft, and, unaware of the decision of the Registrar, a clerical assistant handed it out to him. He thereupon made an entry on his student's card indicating that he was to attend classes in Third Year Architecture and paid the full fees for that year. The defendant, having learned what had happened, sent for the plaintiff with whom he later had an interview at which Mr. O'Connell, the Secretary and Bursar of the College, at the request of the defendant was also present. The plaintiff subsequently sued the defendant for damages for slander, claiming that in the course of the interview the defendant charged him with having obtained the draft by false pretences.

At the trial before Mr. Justice Martin Maguire and a jury counsel for the plaintiff, at the close of the plaintiff's case, pointed out that it was clear from the case adumbrated in cross-examination and in counsel's opening address for the defence that the defence would include a denial that the defendant spoke the words complained of, and submitted that in these circumstances the defendant was not entitled to rely upon the plea of privilege which should, therefore, be struck out. The trial Judge refused to accede to the application. At the close of the evidence the trial Judge on the application of counsel for the defendant, ruled that the occasion was privileged. The jury found that the words were spoken and published; that they were defamatory; that they meant that the plaintiff had committed the criminal offence of obtaining money by false pretences; that the defendant had not an honest belief in the truth of the words spoken; that there was malice, and they awarded damages which they assessed at £750.

The defendant appealed to the Supreme Court on the grounds 1, that the trial Judge misdirected himself and was wrong in law in refusing to hold that there was no evidence from which the jury might infer malice; 2, that the finding of the jury that the words complained of were spoken maliciously was without evidence to support it and against the evidence and the weight of evidence; 3, that the trial Judge had misdirected himself and was wrong in law in directing the jury that the burden of proof was on the defendant to satisfy the jury that the defendant had an honest belief in the truth of the words spoken by him; and 4, that the damages awarded were excessive.

The plaintiff cross-appealed on the grounds that the trial Judge had misdirected himself in law in ruling that the occasion of the speaking of the words was a privileged occasion; and that there was no evidence upon which the trial Judge was justified in so ruling.

Cur. adv. vult.

Maguire C.J. :—

This is an action for slander. The questions which arise on appeal are whether the occasion was privileged, whether there was evidence of malice, whether the trial Judge was

wrong in directing the jury that the burden of proving that he had an honest belief in the truth of the words spoken by him was on the defendant, whether there was evidence of the absence of such honest belief, whether the findings of the jury of malice and the absence of honest belief were against the evidence and the weight of the evidence, and whether the damages are excessive.

The case is an important one, both by reason of the position of the defendant and the issues involved.

The plaintiff was a student of architecture at University College, Dublin, of which College the defendant is the President. The plaintiff had served with distinction during the late war with the British Royal Air Force. He had been granted an award by the British Ministry of Education to enable him to pursue a full-time course of studies at the College leading to a degree in architecture. The award consisted of the payment of fees and a maintenance grant of £334 per annum. The award had been received by him during the years 1946-47 and 1947-48. In accordance with the arrangement between the College and the British Ministry of Education a draft in favour of the plaintiff for the sum of £134 6s. 8d. was received by the Registrar of the College about the middle of September, 1948. This was to be an instalment of the grant for the...