Leech (plaintiff) v Independent Newspaper (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 27 June 2007
• Neutral Citation: [2007] IEHC 223
• Docket Number: Record number number 513P/2005
• Court: High Court
• Date: 27 June 2007

[2007] IEHC 223

The High Court

Record number number 513P/2005

LEECH v INDEPENDENT NEWSPAPERS (IRELAND) LTD

An Árd-Chúirt

Between

Monica Leech,

Plaintiff

And

Independent Newspapers (Ireland) Ltd,

Defendant

REYNOLDS v TIMES NEWSPAPERS LTD 2001 2 AC 127

GATLEY ON LIBEL & SLANDER 10ED 2004 PARA 14.83

JAMEEL & ANOR v WALL STREET JOURNAL EUROPE SPRL 2005 QB 904

JAMEEL & ANOR v WALL STREET JOURNAL EUROPE SPRL 2006 4 AER 1279

TELEVISION NEW ZEALAND v AH KOY 2002 2 NZLR 616

DEFAMATION

Libel

Privilege - Qualified privilege - Public interest defence - Whether public interest defence exists in Irish law - Test to be applied - Whether matter of public interest - Matters to be taken into account in deciding whether matter of public interest - Whether reporting responsible and fair - Matters to be taken into account in deciding whether reporting responsible or fair - Whether necessary to call evidence of fair and responsible reporting - Whether defence should be left to jury - Whether judge or jury should decide if defence exists - Principle of isolating damages - Whether principle of isolating damages applied - Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 approved, Jameel v Wall Street Journal Europe Sprl [2005] QB 904 considered - (2005/513P - Charleton J - 27/6/2007) [2007] IEHC 223

Leech v Independent Newspapers Ltd

The plaintiff sued the defendant newspaper for damages for a news article published on the 17th December, 2004. That article reported on an incident during a live radio call-in programme the day before, where a caller unexpectedly broadcast an allegation of improper conduct between the plaintiff, a communications consultant, and a government minister, claiming that the work that the plaintiff was being paid to do for the minister and the relevant department arose out of this improper conduct. Two rulings were given during the course of the trial.

First set of issues before the court. did a defence of public interest exist in defamation proceedings; if so, how was it to be defined, could such a defence be raised in the context of this case; should such a defence be particularised when pleaded, if neither pleaded or subject to a notice for particulars, should counsel for the defendant be required during the trial to outline particulars prior to cross-examining the plaintiff.

1 Mr. Justice Charleton given on the 27th day of June, 2007 (Ruling in the course of a trial)

2 The plaintiff sued the defendant newspaper for damages for a news article published on the 17th December, 2004. That article reported on an incident during a live radio call-in programme the day before, where a caller unexpectedly broadcast an allegation of improper conduct between the plaintiff, a communications consultant, and a government minister, claiming that the work that the plaintiff was being paid to do for the minister and the relevant department arose out of this improper conduct. Two rulings were given during the course of the trial.

3 First set of issues before the court: did a defence of public interest exist in defamation proceedings; if so, how was it to be defined; could such a defence be raised in the context of this case; should such a defence be particularised when pleaded; if neither pleaded or subject to a notice for particulars, should counsel for the defendant be required during the trial to outline particulars prior to cross-examining the plaintiff.

4 My ruling on this, I think, should be given straightaway, because the jury is waiting and the parties are anxious to proceed with the case and that is the right position to adopt in those circumstances.

5 There are a number of issues I have to decide, but the first thing that I want to say is that I am dealing with an application that is very, very early on in the course of the case where I have not heard a screed of evidence. And secondly, I am dealing with an application in circumstances where my view at the moment, subject to any legal argument in the future, is that it is not up to me to decide this case. I have to step back, ensure that the trial is conducted properly and allow the jury to decide this case as to its facts.

6 Is there such a thing as a public interest defence? In my view, there is. The test as to qualified privilege involves a situation where a party has an interest in receiving information and another party has a duty to pass that information on to them. The classic case, which is often repeated in many of the textbooks, is that one has visitors to one's house, or one's business, and one knows that one's employee has a dubious reputation and one comes to the conclusion, perhaps wrongly, that he or she may steal and so the person informs his or her guests that the employee is a thief. Now, as it turns out, the information you have as to a dubious reputation is incorrect, the employee is not a thief and he or she takes a defamation action against you in relation to what you have said. In those circumstances, because you have a duty in protecting those who come into your home, or into your business premises, and because your guests have an interest in relation to receiving that information with a view to their own protection, a situation of privilege arises.

7 In Reynolds v Sunday Times Newspapers [2002] 2 AC 127 HL, that was developed so that an issue arose as to whether there was such a thing as a general interest in the public in favour of them receiving information, albeit incorrect. And it seems to me that, yes, there is. The public have an interest in many matters, as opposed merely to being interested in matters. Being interested in matters, it seems to me, would refer to matters which are merely titillating or salacious or gossipy. Matters which are of public interest, on the other hand, have to be matters which affect the public in terms of the governance of the country, their safety, their security, and their right to judge their public representatives fairly on the basis of real information. That is not an exhaustive list. I could not possibly formulate an exhaustive list, even if I had time to reserve judgment in this case.

8 In Reynolds, a number of tests were set out by Lord Nichols, which tests are helpfully set out at paragraph 14.83 of Gatley on Libel and Slander (10th edition, London, 2004). These are:

9 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

10 2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

11 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

12 4. The steps taken to verify the information.

13 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

14 6. The urgency of the matter. News is often a perishable commodity.

15 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

16 8. Whether the article contained the gist of the plaintiff's side of the story.

17 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

18 10. The circumstances of the publication, including the timing.

19 And at the end of those, he says the following:

"The list is not exhaustive. The weight to be given to these and to any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to [and here I would substitute the words 'a public interest defence'] is a matter for the judge. This is established practice and it seems to me to be sound. A balancing operation is better carried out by the judge in a reasoned judgment rather than by the jury. Over time, a valuable corpus of case law will be built up".

20 Since that time, as can happen and certainly has happened in England in relation to other areas of law, it seems that errors have been made by people referring to the ten separate indicia of the existence of public interest and by indicating that if one or other of them is absent, or if a decision as to fact might go against a newspaper in relation to one or other, that the entire defence is destroyed. I note with interest the judgment of the Court of Appeal of England and Wales in Jameel and Another v...