Mackin and Another v O'Brien and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Maurice Collins
• Judgment Date: 23 February 2024
• Neutral Citation: [2024] IECA 43
• Docket Number: Record Number: 2021/303-305

Between

Darragh Mackin

Plaintiff/Respondent

and

Denis O'Brien and James Morrissey

Defendants/Appellants

Between

Gavin Booth

Plaintiff/Respondent

and

Denis O'Brien and James Morrissey

Defendants/Appellants

[2024] IECA 43

Barniville P.

Collins J.

Haughton J.

Record Number: 2021/303-305

Record Number: 2021/306-308

THE COURT OF APPEAL

CIVIL

Approved – No redactions required

JUDGMENT of Mr. Justice Maurice Collins delivered on 23 February 2024

BACKGROUND

1 This Judgment relates to a number of appeals which were heard together and which raise common issues.

Background and Dramatis Personae

2 For the purposes of this Judgment, the factual background can be stated relatively briefly. In 2016 Mr Mackin and Mr Booth were both employed by the firm of KRW Law in Belfast: Mr Mackin as a solicitor and Mr Booth as a para-legal (he has since qualified as a solicitor). KRW Law, together with Caoilfhionn Gallagher (now Caoilfhionn Gallagher KC) and Jonathan Price from Doughty Street Chambers in London, were engaged to prepare a report on media ownership in Ireland. The report, entitled “ Report on the Concentration of Media Ownership in Ireland” (“ the Report”) was published on the 19 October 2016. It is described as an “ Independent Study commissioned by Lynn Boylan MEP on behalf of the European United Left/Nordic Green Left (GUE/NGL) Group of the European Parliament” and Mr Booth, Mr Mackin, Ms Gallagher and Mr Price are identified as its authors.

3 Lynn Boylan is a Sinn Féin politician who is now a member of the Seanad but who was a Member of the European Parliament in the period from 2014 to 2019. The European United Left/Nordic Green Left (now called the Left in the European Parliament) is a political grouping in the European Parliament with which Sinn Féin is aligned.

4 Denis O' Brien is a well-known businessman who, as of 2016, held a controlling interest in Communicorp, a company with significant holdings in the commercial radio sector in Ireland and who also held a significant shareholding in Irish News and Media (“ INM”), the publishers of the Irish Independent and the Sunday Independent, newspapers with large circulations in the State. James Morrissey is an associate of Mr O' Brien who has frequently acted as his spokesman or representative.

The Report

5 The Report expressed significant concern about the concentration of media ownership in the State. It identified RTÉ and Mr O' Brien as “ the two most important controlling entities in the Irish media landscape” stating of Mr O' Brien that he had “ a dominant position within the Irish print media sector, given his ownership of a significant minority stake in the country's largest newspaper publisher, Independent News and Media (“INM”), and substantial holdings in the commercial radio sector.” 1 The Report proceeded to reach conclusions and make recommendations, the first of which referred specifically to Mr O' Brien, in the following terms:

“ We conclude that there are extremely grave concerns about the high concentration of media ownership in the Irish market, and in particular regarding the position of INM and Mr. Denis O'Brien. Accumulation of communicative power within the news markets is at endemic levels and so Ireland has one of the most concentrated media markets of any democracy. This feature – alarming in itself – must be viewed

alongside the other gravely concerning aspects of the Irish media landscape which we have highlighted: sustained and regular threats of legal action by Mr. O'Brien to media organisations and journalists who are engaged in newsgathering or reporting about his activities, and the ‘chilling effect’ of the current defamation laws. This is a toxic combination for freedom of expression and media plurality.” 2

The Statement of 26 October 2016

6 On 26 October Mr Morrissey issued a “ Statement on behalf of Mr Denis O' Brien in response to the Report Commissioned by Ms Lynn Boylan MEP (Sinn Féin)”. The Statement is set out in full in the judgment under appeal. It suggested that the self-described “ independent study” was not in reality an independent exercise but was part of the Sinn Féin agenda. Mr O' Brien complained that the Report had not focussed on RTÉ or on lack of objectivity in the media generally when reporting on itself. The Statement concluded as follows:

“ Sinn Féin/IRA certainly got the report they paid for. The cost of this report won't have bothered them too much. They collected €12 million over 20 years in the U.S. (Irish Times March 7, 2015). The IRA is reported to have €400 million in global assets (Irish Times August 29, 2015). Brian Feeney, author, has suggested that a way should be found to stop ‘Sinn Féin people saying the IRA has gone away when self – evidently it hasn't’.

The report references the words ‘chilling effect’ and the law in the same sentence. I bow to Sinn Féin's superior knowledge on these topics.

Maybe instead of commissioning reports Sinn Féin would commit just some of its vast resources and support an ailing industry – become a fully-fledged broadcaster and publisher and create some jobs for a change?”

High Court Proceedings

7 In October 2017, Mr Mackin and Mr Booth issued defamation proceedings against Mr O' Brien and Mr Morrissey, each seeking damages (including aggravated and/or exemplary damages) for defamation, an injunction restraining further defamatory statements and a correction order pursuant to section 30 of the Defamation Act 2009 (“ the 2009 Act”).

8 In their respective Statements of Claim, which were delivered in February 2019 and which are in materially identical terms (Mr Mackin and Mr Booth are represented by a common legal team), Mr Mackin and Mr Booth plead that they had been defamed by the publication of the following words in the Statement:

“ Sinn Féin/IRA certainly got the report they paid for”.

These words, it is said, “ in their natural and ordinary meaning meant, and were understood to mean, and/or by innuendo, meant, that the Plaintiff

(a) received payment from an unlawful organisation, viz. the IRA;

(b) had acted for an unlawful organisation, viz. the IRA;

(c) was not acting in line with his professional obligations;

(d) lacks integrity;

(e) is unfit to be a solicitor;

(f) is unprofessional;

(g) is dishonourable.”

9 In July 2019, Mr O' Brien and Mr Morrissey delivered joint Defences in both actions. Those Defences plead a variety of different defences, including that the Plaintiffs were not identified in the Statement and a denial that the Plaintiffs were the authors of the Report. The Defences also deny that the Statement meant or was understood to mean any of the meanings pleaded by the Plaintiffs. They then plead a defence of truth in the following terms:

“The Defendants plead that the true meaning of the Statement is set out hereunder and that, in respect of those meanings, the words published in the statement were true:

Particulars of Meaning

i. The Report commissioned by Sinn Féin MEP Lynn Boylan was not an independent study;

ii. The Report was neither balanced nor fair since it did not focus on RTÉ which is the largest media entity in Ireland;

iii. The Report was designed to advance the political agenda of Sinn Féin;

iv. Sinn Féin supported and continues to be associated with the IRA;

v. Any Report commissioned by Sinn Féin on media ownership would inevitably be supportive of the Sinn Féin position on media ownership and its opposition to the First Named Defendant and Independent News and Media plc, and;

vi. The violence carried out by the IRA which is supported by Sinn Féin continues to have a chilling effect.

13 In respect of the aforesaid, the Defendants shall rely upon the Defence of truth as provided for in s. 16 of the Defamation Act 2009.”

Each of the Defences defines “the Statement” as “ the 3 page press statement”. On its face, therefore, the pleaded defence of truth refers to the entirety of the Statement and not just the specific sentence of which the Plaintiffs complain.

10 The Defences also plead a defence of honest opinion, in the following terms:

14. The Defendants plead that the words published in the Statement consisted of opinions honestly held by them which, at the time of the publication, they believed to be true.

Particulars of fact upon which honest opinions were based

15 The honest opinions held by the Defendants were based on the following allegations of fact:-

i. the Report commissioned by Sinn Féin MEP Lynn Boylan was not an independent study;

ii. the Report was neither balanced nor fair since it did not focus on RTÉ which is the largest media entity in Ireland;

iii. the Report was designed to advance the political agenda of Sinn Féin;

part of Sinn Féin's agenda is to criticise Apple and the First Named Defendant;

iv. the media industry in Ireland is in decline;

v. the First Named Defendant invested a lot of money in Independent News and Media at a time when it was in significant financial difficulties;

vi. RTÉ should have been considered in the Report but this was not done;

vii. Sinn Féin supported and continues to be associated with the IRA;

viii. any Report commissioned by Sinn Féin on media ownership would inevitably be supportive of the Sinn Féin position of media ownership and its opposition to the first named defendant and Independent News and Media plc;

ix. the violence carried out by the IRA which is supported by Sinn Féin continues to have a chilling effect.

16. Further, the opinion published by the Defendants related to a matter of public interest, namely the Report published by GUE/NGL having been commissioned by Lynn Boylan MEP which concerned media ownership.

17. In respect of the aforesaid, the Defendants shall rely upon the Defence of honest opinion as provided for in s. 20 of the Defamation Act 2009”.

Again, this plea on its face refers to the entirety of the...