McDonagh v Sunday Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Denham C.J.,O'Donnell J.,Ms. Justice Dunne,Mr. Justice John MacMenamin
• Judgment Date: 27 July 2017
• Neutral Citation: [2017] IESC 59
• Court: Supreme Court
• Docket Number: [S.C. No. 92 of 2015],Record No. S:AP:IE:2016 [Appeal No. S:AP:IE:2015:000092] [Record No. 92/15]
• Date: 27 July 2017

Between/

Martin McDonagh

Plaintiff/Appellant

and

Sunday Newspapers limited

Defendant/Respondent

[2017] IESC 59

Denham C.J.

O'Donnell Donal J.

Dunne J.

MacMenamin J.

Denham C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley Iseult J.

Record No. S:AP:IE:2016

Supreme Court No.: 92/15

[Appeal No. S:AP:IE:2015:000092]

[Record No. 92/15]

THE SUPREME COURT

Libel – Damages – Proportionality – Appellant seeking damages for libel – Whether damages awarded were proportionate

Facts: The plaintiff/appellant, Mr McDonagh, claimed that he was libelled in an article entitled "Traveller is new drug king", published by the defendant/respondent, Sunday Newspaper Ltd, on the 5th September, 1999. He issued proceedings on 17th January, 2000. A statement of claim was received on the 2nd February, 2000, which claimed that the article in its natural and ordinary meaning inter alia meant that Mr McDonagh was a criminal, a drug dealer, a tax evader and a loan shark. The Newspaper served its defence in April, 2002, which pleaded justification and qualified privilege. The trial of these proceedings commenced on the 20th February, 2008, before the High Court (de Valera J and a jury). The issue paper for the jury was answered as follows:- Question 1: Has the Newspaper proved: i) that Mr McDonagh was a drug dealer? Answer: No; ii) that he was a loan shark? Answer: No; iii) that he was a tax evader? Answer: Yes; iv) that he was a criminal? Answer: Yes; Question 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 Mr McDonagh's reputation having regard to the truth of the remaining charges?; Question 3: If the answer to Question 2 is yes, assess damages: €900,000. The Newspaper appealed to the Court of Appeal. On the 19th October, 2015, the Court of Appeal (Kelly, Irvine and Hogan JJ) allowed the Newspaper's appeal against the entirety of the jury verdict. Mr McDonagh sought leave to appeal to the Supreme Court. In a determination dated the 18th February, 2016, the Supreme Court granted leave to appeal. The majority decision of the Supreme Court was delivered by Charleton J. Having analysed the trial in the High Court, and the decision of the Court of Appeal, he held that the Court of Appeal was incorrect in the order which it made, and that its order must be reversed in full. The Supreme Court invited written submissions on the following issues: (a) whether another hearing was needed on the issue of Question 2 of the issue paper; (b) damages; (c) whether the High Court should rehear the matter.

Held by Denham CJ that the jury did answer Question 2 in the affirmative, and proceeded to assess damages; thus, the argument made on behalf of the Newspaper failed.

Denham CJ held that, in assessing proportionate damages, she considered: (a) the gravity of the libel; (b) the effect on Mr McDonagh; (c) the extent of the publication; (d) the conduct of the Newspaper; and (e) sums awarded in previous cases on defamation. Denham CJ was satisfied that the award of €900,000 damages was excessive; in all the circumstances, a fair, reasonable and proportionate award of damages would be a very substantially reduced sum, much nearer to the figure proposed by the Newspaper. Denham CJ agreed with the judgments of O'Donnell J and Dunne J.

Damages award excessive.

Judgment delivered the 27th day of July, 2017 by Denham C.J.

1 This is an appeal by Martin McDonagh, the plaintiff/appellant, who is referred to as 'Mr. McDonagh'. Sunday Newspapers Limited, the defendant/respondent, is referred to as 'the Newspaper'.

Article

2 Mr. McDonagh claimed that he was libelled in an article entitled 'Traveller is new drug king', published by the Newspaper on the 5th September, 1999. The article described a seizure of hash and ecstasy worth IR£500,000 in Tubercurry, County Sligo, on the 30th August, 1999. The article identified Mr. McDonagh as the man behind the incident, a drug baron, a person who had amassed a fortune without any visible means of income, a moneylender, and a criminal.

Proceedings

3 Mr. McDonagh issued proceedings on 17th January, 2000. A statement of claim was received on the 2nd February, 2000, which claimed that the article in its natural and ordinary meaning inter alia meant that Mr. McDonagh

a. is a criminal

b. is a drug dealer

c. is a tax evader

d. is a loan shark

4 The Newspaper served its defence in April, 2002, which pleaded justification and qualified privilege.

The High Court – Judge and Jury

5 The trial of these proceedings commenced on the 20th February, 2008, before de Valera J. and a jury, and ran for five days.

6 During the trial it was accepted by Mr. McDonagh that he was a tax evader and a criminal.

The Issue Paper

7 The issue paper for the jury was answered as follows:-

Question 1: Has the [Newspaper] proved:

i. that [Mr. McDonagh] is a drug dealer?

Answer: No

ii. that [Mr. McDonagh] was a loan shark?

Answer: No

iii. that [Mr. McDonagh] was a tax evader?

Answer: Yes

iv. that [Mr. McDonagh] was a criminal?

Answer: Yes

Question 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 [Mr. McDonagh's] reputation having regard to the truth of the remaining charges?

Question 3. If the answer to 2 is yes, assess damages.

€900,000.

The Court of Appeal

9 The Newspaper appealed to the Court of Appeal. On the 19th October, 2015, the Court of Appeal (Kelly, Irvine and Hogan JJ.) allowed the Newspaper's appeal against the entirety of the jury verdict.

10 Hogan J. held, in conclusion, that the jury verdict so far as it concerned the drug dealing allegation could not be allowed to stand. He held that the evidence overwhelmingly pointed to the conclusion that Mr. McDonagh was a drug dealer associated with the drugs seizure at Tubercurry. He stated:-

'If the allegation was correct, the Newspaper had a constitutional right to publish this information by virtue of Article 40.6.1.i and that right cannot be compromised by a jury verdict which was, in essence, perverse.'

11 As to the issue of loan sharking, Hogan J. held that it was more limited, that it might have been open to a properly instructed jury to find for Mr. McDonagh on that allegation. He described appropriate instructions, but held that as the jury was not so instructed, that the verdict on the loan sharking allegation could not be allowed to stand. Thus, the Court of Appeal allowed the Newspaper appeal against the entirety of the verdict. Hogan J. held that as the drug dealing allegation was found to be true, that part of Mr. McDonagh's claim would be dismissed. He directed a new trial on the loan sharking allegation. He pointed out that it was therefore unnecessary for him to address the issue of quantum of damages.

12 As to the lack of a written answer to Question 2 on the issue paper for the jury, Hogan J. held that it was impossible to know how or why the jury failed to answer 'an essential question which they were required by law to answer.' He held:-

'Quite independently of any other consideration this in itself would have been enough to justify the setting aside of the jury verdict, as it cannot 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.'

The Determination

13 Mr. McDonagh sought leave to appeal from the Supreme Court. In a determination dated the 18th February, 2016, [2016] IESCDET 27, the Supreme Court granted leave to appeal on five grounds. It was decided:-

'9.2. ... in the view of the Court, the following issues arise as being issues of general public importance, or that it is in the interest of justice that they should be determined by this Court. These are (a) whether it is open to the Court of Appeal to reverse a jury verdict that a statement was defamatory of the plaintiff arrived at even in the face of strong evidence to the effect that the defending allegation was true; (b) whether the media have a constitutional right to publish material, and that this right cannot be compromised by a jury verdict to the effect that such material was defamatory of the plaintiff; (c) whether it was necessary for the jury to be warned by the trial judge that, objectively speaking, the plaintiff's credibility had been compromised; (d) whether the Court of Appeal is entitled to reverse the verdict of the jury on the grounds that it was perverse, if some other alternative explanation was open to the jury; (e) the present legal status in the State of the rule in Browne v. Dunn, in circumstances where little of the evidence adduced by the newspaper, either in regard to the allegation of drug dealing, or loan sharking, had, in fact, been directly challenged in cross-examination.

9.2. In the view of the Court, these are issues which each reach the constitutional threshold. (a) to (c) deal with constitutional rights of free expression, and the role of juries in defamation proceedings. (d) deals with the power of an appeal court to reverse jury verdicts. (e) deals with an important evidential rule. Each of the matters is of general public importance, and is also matters where the interests of justice very clearly arise in this, and other cases. The Court, therefore, grants leave to appeal under Article 34.5.3 of the Constitution, on each of the grounds (a) to (e) set out above, and the Court so orders.'

The Supreme Court

14 The majority decision of the Court, was delivered by Charleton J. McDonagh v, Sunday Newspapers Limited [2017] IESC 46. Having analysed the trial in the High Court, and the decision of the Court of Appeal, he held that the...