McDonagh v Sunday Newspapers Ltd

JurisdictionIreland
JudgeMr. Justice Gerard Hogan
Judgment Date19 October 2015
Neutral Citation[2015] IECA 225
CourtCourt of Appeal (Ireland)
Date19 October 2015

[2015] IECA 225

THE COURT OF APPEAL

Kelly J.

Irvine J.

Hogan J.

Appeal No. No. 116/2014
McDonagh v Sunday Newspapers Ltd
[Article 64 transfer]
BETWEEN/
MARTIN MCDONAGH
RESPONDENT

AND

SUNDAY NEWSPAPERS LIMITED
APPELLANT

Defamation - Damages - Perverse verdict - Appellant seeking to have a jury verdict set aside - Whether verdict was perverse

Facts: The respondent, Mr McDonagh, claimed that he was defamed in an article published by the Sunday World on 5th September 1999. The article purported to narrate the background to the seizure by members of An Garda Siochána of some IR£500,000 worth of illegal drugs in Tubbercurry, Co. Sligo a few days previously on 30th August 1999. The article identified Mr McDonagh as the man behind the drug seizure. He was described as a drug dealer who lived in Sligo and as somebody who had amassed a fortune without any visible means of income. He was also described as an illegal moneylender and a criminal. Details were given regarding his lifestyle, abode and family. The respondent delivered a statement of claim in February 2000 contending that the article in its natural and ordinary meaning meant that he was a criminal, a drug dealer, a tax evader and a loan shark. The newspaper delivered its defence in April 2002 and the defences of justification and qualified privilege were both pleaded. At the hearing of the action in February 2008 it was agreed that three questions should be put to the jury: 1) Has the defendant proved that the plaintiff was (a) a drug dealer, (b) a loan shark, (c) a tax evader or (d) a criminal?; 2) If the answer to one or more parts of question 1 is 'no', but the answer to one or more parts of question 1 is 'yes', do the words not proved to be true materially injure the plaintiff's reputation having regard to the truth of the remaining charges?; 3) If the answer to question 2 is 'yes', assess damages. The jury answered 'no' to Question 1(a) and (b), 'yes' to Question 1(c) and (d), €900,000, plus costs to Question 3 and failed to answer Question 2. The appellant, Sunday Newspapers Ltd, appealed to the Supreme Court from the decision of the High Court against the jury verdict on the ground that it was perverse. The appellant also appealed the amount of the award on the ground that it was excessive. There was another issue which arose on the appeal, namely, the failure of the jury to answer Question 2 on the issue paper prior to proceeding to assess damages. The appeal was transferred to the Court of Appeal by direction of the Chief Justice in October 2014 pursuant to the provisions of Article 64.3.1 of the Constitution.

Held by Hogan J that the jury verdict so far as it concerned the drug dealing allegation could not be allowed to stand. Hogan J held that, when viewed objectively, the evidence overwhelmingly pointed to the conclusion that the respondent was, indeed, a drug dealer associated with the drugs seizure at Tubbercurry; if the allegation was correct, the newspaper had a constitutional right to publish that information by virtue of Article 40.6.1.i and that right could not be compromised by a jury verdict which was, in essence, perverse. Hogan J noted that the evidence adduced in relation to the loan sharking allegation was much more limited. Hogan J considered that it might have been open to a properly instructed jury to find for the respondent on that allegation, however it would have been necessary for the jury to have been told in express terms that the failure by the respondent effectively to cross-examine one Garda Doherty regarding loan sharking admissions meant that such evidence carried considerable weight. Hogan J considered it true that the jury might have elected to believe the respondent's denial that he made such a statement to Garda Doherty, but it would also have been necessary for the jury to have been warned in appropriate terms that the plaintiff's credibility had, objectively speaking, been compromised. As the jury was not so instructed, Hogan J did not think that the verdict on the loan sharking allegation could be allowed to stand. Hogan J held that the jury's failure to answer Question 2 in itself would have been enough to justify the setting aside of the jury verdict, as it could not be said that the jury returned a verdict in accordance with law or that they gave any consideration to the implications of a defence which the law afforded to the newspaper.

Hogan J held that the Court should allow the appeal of the newspaper against the entirety of the verdict. As the drug dealing allegation was found to be true, the Court dismissed that part of the plaintiff's claim. It followed that Hogan J would direct a new trial on the loan sharking allegation only.

Appeal allowed.

1

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 19th day of October 2015

2

1. In what circumstances can an appellate court set aside a jury verdict in a defamation case on the ground that it is perverse? This is the principal issue which is presented on this appeal from a decision of the High Court (de Valera J. and a jury) of 28 th February 2008 where the jury found that the plaintiff had been defamed by a publication in the Sunday World on 5 th September 1999. The jury awarded the plaintiff the sum of €900,000 in damages.

3

2. As it happens, this award was more than twice the then existing record for defamation awards which had been established in de Rossa v. Independent Newspapers plc. [1999] 4 I.R. 432. (This amount has since been exceeded by a number of other awards, most notably the award of some € 1.87m. in Leech v. Independent Newspapers Ltd. [2014] IESC 79, a sum reduced on appeal by the Supreme Court to €1.25m.). The defendant has also appealed the amount of this award on the ground that it is excessive and this is the second issue which arises on this appeal. There is also a third issue which I will presently address, namely, the failure of the jury to answer the second question on the issue paper prior to proceeding to assess damages.

4

3. Before considering any of these questions, it is first necessary to set out the nature of the publication itself.

The nature of the publication
5

4. The plaintiff, Mr. McDonagh, claims that he was defamed in an article published by the Sunday World on 5 th September 1999 entitled "Traveller is new drug king." The article purported to narrate the background to the seizure by members of An Garda Siochana of some IR£500,000 worth of illegal drugs (cannabis and amphetamines) in Tubbercurry, Co. Sligo a few days previously on 30 th August, 1999.

6

5. The article identified Mr. McDonagh (although it did not name him as such) as the man behind the drug seizure. He was described as a drug dealer who lived in Sligo and as somebody who had amassed a fortune without any visible means of income. He was also described as an illegal moneylender and a criminal. Details were given (in general terms) regarding his lifestyle, abode and family. The newspaper accepted that he was the person identified in the article.

7

6. The newspaper contended that the plaintiff did not personally touch any drugs, but that he had flown to London Stansted from Ireland West (Knock) airport with his brother and some accomplices a few days before the drugs were seized by the Gardaí. It was suggested by the newspaper that he had spent the weekend there in the company of a known drug dealer and that he had arranged for the accomplices to bring the drugs back in two holdalls. The accomplices travelled by ferry while he flew back to Knock. The Gardaí then kept the consignment under surveillance and the two accomplices were later arrested in possession of the drugs at a house in Tubbercurry. Although the plaintiff was arrested under s. 2 of the Criminal Justice (Drug Trafficking) Act 1996, and detained for seven days in relation to the seizure, he was never charged with any offence. The two accomplices, Mr. Carthy and Mr. O'Grady, were subsequently convicted and each received a five year sentence.

The proceedings and the issues
8

7. These proceedings were commenced on 17 th January 2000. A statement of claim was delivered on 2 nd February 2000. In his statement of claim the plaintiff contended that the article in its natural and ordinary meaning meant:-

9

(a) that he was a criminal;

10

(b) that he was a drug dealer;

11

(c) that he was a tax evader, and

12

(d) that he was a loan shark.

13

8. The newspaper delivered its defence in April 2002 and the defences of justification and qualified privilege were both pleaded. At the hearing of the action in February 2008 it was agreed that three questions should be put to the jury, with the first question broken down into four component parts.

14

9. Question 1 on the issue paper was in the following terms:-

"Has the defendant proved:"

15

(a) that the plaintiff is a drug dealer?

16

Answer: No.

17

(b) that the plaintiff was a loan shark?

18

Answer: No.

19

(c) that the plaintiff was a tax evader?

20

Answer: Yes.

21

(d) that the plaintiff was a criminal?

22

Answer: Yes

23

10. The second question actually provided for the contingency where some of the individual components in question 1 would be answered in the affirmative with others in the negative. The second question was in the following terms:

"Question 2:"

24

If the answer to one or more parts of question 1 is 'no', but the answer to one or more parts of question 1 is 'yes', do the words not proved to be true materially injure the plaintiff's reputation having regard to the truth of the remaining charges?"

25

11. The jury did not, unfortunately, answer the second question and, indeed, their failure to do so has given rise to a separate ground of appeal. The jury did, however, answer the third question which was in...

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