Mangan v Independent Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken,Keane C.J.,[nem diss]
• Judgment Date: 31 January 2003
• Neutral Citation: [2003] IESC 5
• Date: 31 January 2003
• Docket Number: 305/00,[S.C. No. 72 of 2002]
• Court: Supreme Court

[2003] IESC 5

THE SUPREME COURT

Geoghegan J

Fennelly J

McCracken J

72/2002

MANGAN v. INDEPENDENT NEWSPAPERS (IRL) LTD

Between:

Joseph Mangan

Plaintiff/Respondent

AND

Independent Newspapers (Ireland) Ltd

Defendant/Appellant

Citations:

COURTS ACT 1981 S17(5)

COURTS ACT 1981 S17(1)

COURTS ACT 1991 S14

VELLA V MORELLI 1968 1 IR 11

O'BRIEN V MIRROR GROUP NEWSPAPERS LTD & ORS 2001 1 IR 1

COURTS ACT 1981 S17(2)

Synopsis:

PRACTICE AND PROCEDURE

Costs

Libel proceedings - Conduct of trial in High Court - Jury discharged in first trial - Retrial ordered by Supreme Court - Plaintiff recovering damages within Circuit Court jurisdiction - Costs of original trial and retrial awarded on Circuit Court scale by trial judge to plaintiff - Costs of seven day hearing awarded to plaintiff - Whether exercise of discretion by trial judge correct - Courts Act 1981, section 17 (72/2002 - Supreme Court - 31/01/03)

Mangan v Independent Newspapers (Ireland) Ltd - [2003] 1 IR 442 - [2003] 2 ILRM 33

Facts: the plaintiff was awarded EUR25,000 damages for libel in the High Court on a retrial following a Supreme Court appeal by the defendant. The High Court awarded the costs of the entire action to the plaintiff on the Circuit Court scale plus the costs of the aborted trial. The defendant appealed the High Court decision in relation to costs on the grounds that: the costs should have been limited to the costs of a three day hearing on the basis that a Circuit Court trial would have been completed within that period; that it would be unjust for the defendant to bear the costs of the abortive trial, and; that the trial judge should have exercised her discretion under section 17(5) of the Courts Act 1981 to award the defendant a portion of their costs as against the plaintiff.

Held by McCracken J in dismissing the appeal that the plaintiff was entitled to the costs of a seven day hearing in the High Court as the trial judge correctly refused to speculate on the length of a Circuit Court hearing and as time was taken up by reason of the unjustifiable defences raised by the defendant. As the Supreme Court, in an earlier ruling, ordered that the costs of the abortive first trial would abide the outcome of the retrial, the order of the trial judge was in accordance with the intentions of the Supreme Court and was not an improper exercise of discretion. As the plaintiff had not been unreasonable in bringing the proceedings in the High Court, the trial judge had properly refused to make an order under section 17(5) of the Act of 1981.

1 Judgment of Mr Justice McCracken delivered the 31st day of January 2003.

Background

2 The plaintiff, who is a judge of the District Court, sued the defendant for libel arising out of an article published in the Sunday Independent on 22 ^nd March 1998. The defendant defended the action on three grounds, namely, that the words did not bear the meaning for which the plaintiff contended, that they were fair comment on a matter of public interest and that they were true in substance and in fact.

3 The action came on for trial on 8 ^th November 2000, before Barr J and a jury. On the second day of the trial Counsel for the plaintiff objected to certain elements of the opening of the defence by Counsel for the defendant and asked that the jury be discharged. Barr J accepted the validity of the objection, and there was considerable discussion as to whether the jury should be discharged or whether the learned Judge should attempt to rectify the situation by addressing the jury. In the end the learned trial Judge decided to discharge the jury and he awarded the costs of the hearing to the plaintiff.

4 The defendant appealed this order to the Supreme Court and by order of the Supreme Court dated 25 ^th July 2001, the appeal was allowed and the Supreme Court discharged so much of the order of the High Court as ordered the defendant to pay the plaintiff's costs and further ordered that the plaintiff pay the defendant the costs of the appeal. In relation to the costs of the hearing of the High Court the Supreme Court order provided:-

"IT IS ORDERED that the costs of the hearing in the High Court do abide the outcome of the retrial directed in the said order."

5 The retrial commenced on 12 ^th February 2002, before Carroll J and a jury, and after a hearing lasting for six days the jury found in favour of the Plaintiff and awarded him damages in the sum of £25,000. In the course of the retrial the learned trial Judge had withdrawn the defences of fair comment and justification from the jury. Argument then took place before the learned trial Judge in relation to both the costs of the trial which had just taken place and the costs of the aborted trial before Barr J. The learned trial Judge reserved her decision on the question of costs overnight and on 27 ^thFebruary 2002, decided that the plaintiff should recover the costs of the entire action on the Circuit Court scale and should also recover the costs of the aborted trial on the Circuit Court scale. In both cases with a certificate for Senior Counsel. She also refused to make an order under s.17 (5) of the Courts Act 1981. The defendants have appealed the decision of the learned trial Judge in relation to costs.

6 There issues have arisen on this appeal which I propose to deal with separately.

Costs of Trial before Carroll J.

7 Section 17 (1) of the Courts Act 1981, as amended by s.14 of the Courts Act 1991, reads as follows:-

"(1) Where an order is made by the court in favour of the plaintiff or applicant in any proceedings .... and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court."

8 In pursuance of this subsection, the learned trial Judge, quite correctly, limited the costs of the plaintiff to Circuit Court costs. However, the defendant further argues that the costs awarded should also be limited to the costs of a three day hearing on the basis that a trial before a judge alone in the Circuit Court would have been completed within that period. The defendant argues that, by awarding the plaintiff the costs of the full seven days before the High Court, the plaintiff was in fact going to recover more costs than he would have been entitled to recover if the proceedings had been heard in the Circuit Court. In relation to this argument the learned trial Judge held:-

"It is not always possible to predict how long a case may take and counsel constantly get it wrong and it is equally impossible to say with hindsight.

In my view a lot of time was taken up in the High Court because the defendant pursued three defences, two of which fair comment and justification were disallowed, because the article did not disclose the full facts. That is, that the phone call was taken by Judge Mangan in discharge of his official duties. In my view, the plaintiff is entitled to Circuit Court costs in respect of the entire trial with a certificate for Senior."

9 There is no doubt that the course as suggested by the defendant would have been open to the trial Judge in her discretion, had she thought it proper to take that course. It is not uncommon for a trial judge to limit the costs to a specified number of days for reasons to do with the conduct of the trial, or because the successful party may have failed on certain issues. However, the defendant has not been able to point to any authority whereby the costs should be limited because the trial might have taken a shorter time in a lower court.

10 There is no doubt, that all things being equal, the probability is that the case would not have lasted as long in the Circuit Court, but there could be no certainty as to this. The defendant has pointed to certain elements in the trial which might not have taken place had it been held in the Circuit Court, such as the charge to the jury, but against this must be weighed the impossibility of estimating with any accuracy the length of time which a trial will take. Apart from anything else to do so with any accuracy would require the identification of the judge who would hear the trial, as some judges conduct their business much more slowly than others.

11 I also think that the wording of s.17 (1) certainly does not make it mandatory on the learned trial Judge to disallow some days of the hearing. The section provides that the plaintiff shall not recover more costs than he would have been entitled to recover in the Circuit Court, but the order in the Circuit Court almost certainly would have simply been an order for the costs of the entire trial. That is the order that has been made by the learned trial Judge in the High Court and therefore is one which she perfectly entitled to make. In my view, while she had a discretion which would have allowed her to limit the number of days of hearing, she correctly exercised her discretion in refusing to speculate on the length of a Circuit Court hearing, and also on the basis that a lot of time was taken up by reason of the unjustifiable defences raised by the defendant, which is a certainly a matter she was entitled to take into account in the exercise of a discretion.

Costs of the Abortive Trial

12 The learned High Court Judge undoubtedly erred when she stated in her judgment that the plaintiff did not ask the trial judge to discharge the jury. This Court has had the benefit of the transcript of the arguments before Barr J in the abortive trial, and it is quite clear that the initial objection taken by Counsel for the plaintiff included a specific request to discharge the jury. However, this was not the only basis on which the learned trial Judge awarded the costs of the abortive hearing.

...