Leech v Independent Newspaper (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Murray J.
• Judgment Date: 19 December 2014
• Neutral Citation: [2014] IESC 79
• Date: 19 December 2014
• Docket Number: [Appeal No. 2009/282],[S.C. No. 282 of 2009]
• Court: Supreme Court

BETWEEN

MONICA LEECH

PLAINTIFF/RESPONDENT

AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED

DEFENDANT/APPELLANT

[2014] IESC 79

Murray J., McKechnie J., Dunne J.

[Appeal No. 2009/282]

THE SUPREME COURT

Entertainment & Media – Libel – Damages – Award of – Appeal against award of damages as result of newspaper publication

Facts: The respondent had been awarded damages for libel as a result of a series of articles published by the appellant. The appellant’s articles had been held to have alleged the respondent had carried on an affair with a government minister. The newspaper now sought to appeal the judgment below arguing that the award would have a chilling effect on the newspaper’s freedom of expression

Held by Dunne J, Murray J concurring, that the appeal would be allowed in respect of the amount of damages to be awarded only. Whilst the libel was serious in its nature and impact on the respondent and her family, it could not be said to be of the most serious type. In order to bring an end to the long running matter, the High Court’s award of damages would be reduced accordingly. De Rossa v Independent Newspapers Plc [1999] 4 I.R. 432 considered.

Judgment of Ms. Justice Dunne delivered on the 19th day of December, 2014

1 This is one of two appeals in respect of the litigation between the parties. Both appeals were heard on the same day. This appeal is brought on behalf of Independent Newspapers (Ireland) Limited (hereinafter referred to as the Newspaper) from the order of the High Court made herein on the 24th June, 2009 in which the plaintiff/respondent (hereinafter referred to as Ms. Leech) was awarded the sum of €1,872,000 by way of damages for libel together with an order for costs made herein on the 26th June, 2009.

Background

2 Ms. Leech in these proceedings sought damages for libel arising out of a series of articles in the Evening Herald newspaper owned and published by the Newspaper between the 30th November, 2004 and the 17th December, 2004. Ms. Leech instituted proceedings against the Newspaper on the basis that the articles in their natural and ordinary meaning meant that she was having an extramarital affair with Mr. Martin Cullen who was then the Minister for the Environment. Prior to the commencement of the proceedings, Ms. Leech worked as a Communications Consultant advising the Office of Public Works and subsequently, the Department of the Environment. Mr. Cullen was a junior minister in charge of the Office of Public Works and, subsequently, between 2002 and 2004 he was the Minister for the Environment.

3 The trial of the proceedings took place before a judge and jury over seven days and at the conclusion of the evidence the following questions were put to the jury:

“1. Did the articles mean that the plaintiff had an extramarital affair with Minister Martin Cullen?

2. Did the articles mean that the plaintiff had travelled to New York with Minister Martin Cullen for a United Nations Conference and failed ever to attend it?

If the answer to questions Nos. 1 and 2 is “No” proceed no further.

If the answer to questions Nos. 1 or 2 is “Yes” assess damages.”

4 The jury brought in a verdict having answered the questions as follows:

“Question 1: Yes.

Question 2: No.

Damages: €1,872,000.”

5 Accordingly, judgment was entered for that amount on the 26th July, 2009 and it was further ordered that a sum of €750,000 on account of the damages awarded and the sum of €100,000 on account of the costs awarded be paid forthwith and a stay was granted in respect of the order in the event of an appeal together with a stay on the payment of the sums of €750,000 and €100,000 until the 31st July, 2009 or until further order.

The appeal

6 The Newspaper has appealed from the judgment and order of the High Court made herein and the notice of appeal sought inter alia:

(1) An order directing a re-trial in the High Court on the issue of damages. The appeal in that respect was grounded on the following basis:

“The damages awarded against the defendant/appellant were of such a level that no reasonable jury could award and/or were disproportionate to the damage caused and/or constitute an unlawful interference with the defendant’s rights under the Constitution and/or under the European Convention on Human Rights.”

7 Complaint was also made as to the decision of the learned trial judge to direct the payment out of the sum of €750,000.

Scrutiny of the award of damages by a jury

8 This is a case which pre-dates the enactment of the Defamation Act 2009 which introduced new provisions, inter alia, in relation to damages particularly, in relation to the directions to be given to a jury by the trial judge in respect of a trial in the High Court and the matters to which regard shall be had in assessing damages. Prior to the 2009 Act, the trial judge was limited as to the directions that could be given to a jury on the subject of the quantum of damages. The assessment of damages was and remains a matter entirely for the jury but by virtue of the provisions of the 2009 Act it is now possible for the trial judge to give more detailed directions to a jury as to the assessment of damages. The position was different when these proceedings came to trial before the High Court. It is not suggested that there was any error on the part of the trial judge in his charge to the jury on the question of damages. Rather the complaint made is that the award of damages made herein is so disproportionately high that it ought to be set aside. However, it is important to point out that the fundamental task of this Court on an appeal from the verdict of a jury on the basis that the damages awarded were excessive, remains the same.

9 The parties in their respective submissions have both referred to a number of the same authorities in which the difficult question as to the assessment of damages in defamation actions has been considered. The first of those is the Supreme Court decision in the case of Barrett v. Independent Newspapers Limited [1986] I.R. 13. A passage from the judgment of Henchy J. in that case (at page 23) has subsequently found approval in a number of other decisions and for that reason it would be helpful to refer to the relevant passage in full. Henchy J. stated:

“In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts as found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case, and any other matter which bears on the extent of the damages. The judge, quite properly, in this case told the jury to ignore all matters in the article save the allegation of an assault. Also, quite properly, he told the jury that they should not allow their assessment of damages to be affected by the fact that the plaintiff had agreed to donate the damages to charity. Indeed it is right to point out that no criticism was made at the trial by either side of any part of the judge's address to the jury.

The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader's success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”

10 Subsequently in the case of de Rossa v. Independent Newspapers Plc [1999] 4 I.R. 432, Hamilton C.J. having quoted that passage commented:

“This passage emphasises:

(a) that it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of;

(b) that it is a fundamental principle of the law of...