McDonagh -v- Sunday Newspapers Limited, [2017] IESC 59 (2017)

Docket Number:92/2015
Party Name:McDonagh, Sunday Newspapers Limited

THE SUPREME COURT[Appeal No. S:AP:IE:2015:000092]

Denham CJ

O'Donnell J

McKechnie J

MacMenamin J

Dunne J

Charleton J

O'Malley J




Judgment of Ms. Justice Dunne delivered the 27th day of July 2017

I have read the judgments of Denham C.J. and O'Donnell J. and I agree with them. I want to make some brief observations of my own.

The plaintiff in this case was the subject of an article which appeared on the front page and on inside pages of the edition of the Sunday World newspaper published on 5th September, 1999. The headline over the front page story which was the main story that appeared was "Traveller is new drug king". Underneath a sub headline said "[t]he shark is arrested as huge haul of hash and ecstasy is found". The story was continued inside on pages 2 and 3 in a similar vein. While the plaintiff was not mentioned by name in the article complained of, he was readily identifiable from the article and accompanying photographs, albeit that they were pixillated. The plaintiff brought proceedings for defamation arising out of the article and claimed inter alia that it meant that he was a criminal, that he was a drug dealer, that he was a tax evader and that he was a loan shark. A defence was duly filed pleading inter alia that the words complained of were true in substance and in fact. Following the trial of the action in February of 2008, the jury in response to the questions on the issue paper reached the conclusion that the plaintiff was not a drug dealer and was not a loan shark. They did however accept that the plaintiff was a tax evader and that the plaintiff was a criminal. The jury could hardly have concluded otherwise given that this was accepted by the plaintiff from the commencement of the trial before the jury. In circumstances which have already been described in earlier judgments of this Court and which do not need to be further addressed in this judgment, the jury proceeded to assess damages in favour of the plaintiff in the sum of €900,000.

The question arises as to whether that sum by way of damages is excessive as contended by the defendant and should be set aside on the basis that it is so excessive or is it an appropriate measure of damages having regard to the seriousness of the libel as contended by the plaintiff.

Amount of award

In the case of Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214 (“the Leech case”), in giving the majority judgment of this Court in that case, I considered the approach to be taken by an appellate court in considering the award of damages by a jury in the following terms (at para. 123):

"Counsel on behalf of Ms. Leech took issue with [the newspaper's] submission and argued that in the light of the decision of the Supreme Court in de Rossa v. Independent Newspapers plc. [1999] 4 I.R. 432 and having regard to the decision of the European Court of Human Rights in Independent News and Media v. Ireland (App. No. 55120/00), the position of the Supreme Court and indeed the European Court of Human Rights is that the Irish approach to scrutiny of the award of damages by a jury in cases such as this is compliant with the Irish Constitution and the Convention. It was further submitted that the decision of the European Court of Human Rights in Independent News and Media v. Ireland did not alter or reconfigure Irish law in respect of awards of damages in defamation actions. I agree with that submission. As is clear from the authorities referred to above, the position in Irish law is that an appellate court will be slow to interfere with the verdict of a jury on the assessment of damages but nevertheless awards by juries are subject to scrutiny and if an award is so disproportionate in the circumstances of the case having regard to the respective rights of freedom of expression on the one hand and on the other hand the requirement under the Constitution to protect the good name of every citizen, that no reasonable jury would have made such an award then the award will be set aside on appeal."

I also made the following observation in the Leech case (at para.119 et seq) :

Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.

Thus it is clear that while the assessment by a jury of damages for defamation is not sacrosanct, it does carry considerable weight such that appellate courts have been slow to interfere with the assessments by a jury and an appellate court should only set aside such an award if the appellate court is satisfied that the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made the award in all the...

To continue reading