McDonagh v Sunday Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 28 June 2017
• Neutral Citation: [2017] IESC 46
• Docket Number: [S.C. No. 92 of 2015],Supreme Court appeal number: 2015 no 000092 Court of Appeal record number: 2014 no 116 [2015] IECA 225 High Court record number: 2000 486P
• Court: Supreme Court
• Date: 28 June 2017

Between

Martin McDonagh

Plaintiff/Appellant

- and -

Sunday Newspapers Limited

Defendant/Respondent

[2017] IESC 46

Charleton J.

Denham CJ

O'Donnell Donal J

McKechnie J

MacMenamin J

Dunne J

Charleton J

O'Malley Iseult J

Supreme Court appeal number: 2015 no 000092

[2017] IESC 046

Court of Appeal record number: 2014 no 116

[2015] IECA 225

High Court record number: 2000 486P

An Chuirt Uachtarach

The Supreme Court

Practice and procedure – Appeal – Role of appellate court – Findings of fact – Substitution for first instance decision

Facts: The appellant had been described by the respondent newspaper as an active member of a drugs supply operation in County Sligo. He alleged that the allegations were defamatory, and brought an action in the High Court seeking damages. The High Court had found for the appellant in certain aspects, and an award of damages plus costs was made. The Court of Appeal in 2015 allowed the respondent's appeal and in effect overturned the jury's verdict that the appellant was not a drug dealer. The matter now came on appeal to the Supreme Court.

Charleton J gave a judgment in which Denham CJ, O'Donnell J, Dunne J and O'Malley Iseult J concurred. The evidence put before the High Court was considered with the leading jurisprudence on the role of an appellate court. The evidence before the High Court was not all consistent with the allegations made by the respondent, and an appellate court was not to overturn a jury's finding on liability unless there was no rational explanation for that finding. On that basis, the Court could not state that the exceptional circumstances required for overturning the finding of fact by the Jury existed in this case. In respect of the deficiencies in the cross-examination of certain witnesses, it could not be said that the flaws were sufficient to warrant a retrial.

The Court of Appeal's ruling was therefore incorrect, and the resulting order would be reversed in full. In respect of the matter going forward, Counsel were invited to make submissions.

Judgment of Mr Justice Peter Charleton , delivered on Wednesday 28 June 2017

1 Principally, this appeal concerns the role of an appellate court in reversing findings of fact and, in particular, substituting its own ruling in place of a trial court's determination. In this defamation case, the central allegation by the defendant newspaper was that the plaintiff Martin McDonagh was actively part of a gang which imported about €500,000 worth of drugs - ecstasy and cannabis resin - into Tubbercurry, County Sligo, in an operation intercepted by the gardaí on the evening of Monday, 30 ^th August 1999. Two men were arrested and later convicted of this. These were the people found in personal physical control of the drugs. The plaintiff was elsewhere at the time of the interception. While the jury in the High Court found that the newspaper had not proven at trial that the plaintiff was criminally involved in drug dealing, the Court of Appeal overturned that verdict and, furthermore, found as a matter of fact that he was.

Background

2 The plaintiff Martin McDonagh was the subject of the front page article in the September 5 ^th 1999 issue of the Sunday World, a newspaper published by the defendant. He was, at that time, under arrest in Sligo and was being questioned by detectives on suspicion of drug smuggling in consequence of a very large seizure in Tubbercurry. Under the banner headline 'TRAVELLER IS NEW DRUGS KING', and, referring to the plaintiff by an unpleasant nickname, it announced 'The Shark is arrested as huge haul of hash and ecstasy is found'. Apparently based on informed sources, which some might think to be irresponsible members of the gardaí who leaked information to the press, it described the plaintiff as 'one of Ireland's top drug dealers', 'a violent moneylender', a man with no 'visible means of income', but with 'a series of convictions', and leading 'a lavish lifestyle'. His nickname is explained in the piece as being a reference to his reputation as an unlicensed moneylender or "loan shark". The importation of about €500,000 worth of illegal drugs is linked to him in the piece, though the implication was that evidence would be hard to find to connect him as 'the drug baron does not touch drugs and never carries them.'

3 The plaintiff was released after 7 days of questioning by gardaí. According to statements made to them while in custody, many of which he later disavowed, this article threw him into a panic, made him a target for assassination and ruined his life. During his detention, he was taken with a suspected heart attack to Sligo General Hospital. He issued a plenary summons claiming defamation on 17 ^th January 2000, followed by a statement of claim on 2 ^nd February of that year. The newspaper delivered a defence 2 years later on 2 ^nd April 2002. It denied that the words were published 'wrongfully or maliciously', claimed an occasion of qualified privilege, denied any entitlement to damages, and pleaded at paragraph 10:

... the words complained of were ... the result of the exercise by the defendant of its rights under articles 40.3 and 40.6.1o.i of the Constitution.

4 At the 5 day High Court trial before deValera J and a jury, which commenced on 20 ^th February 2008, the newspaper claimed that the article was true; a plea of justification. The newspaper consequently bore the burden of proof of showing as a probability that the allegations in the article were factually made out. Pared down, the newspaper had to demonstrate that the plaintiff was a drug dealer and outlaw money lender who enjoyed a lavish lifestyle in consequence of illegal earnings. On the 28 ^th of that month, the jury retired with a series of questions settled by the trial judge. The jury found for the plaintiff. The High Court judge made an order accordingly. The following are the questions put to the jury and the answers which they gave in reply:

Question 1: Has the Defendant proved: i. that the Plaintiff is a drug dealer?

Answer: NO

ii. that the Plaintiff was a loan shark?

Answer: NO

iii. that the Plaintiff was a tax evader?

Answer: YES

iv. that the Plaintiff 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 the Plaintiff's reputation having regard to the truth of the remaining charges?Answer: [no answer given]

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

Damages: €900,000.00 plus costs

5 The newspaper appealed to the Court of Appeal. The result is best encapsulated in the order of that court dated 16 ^th November 2015 which reads:

that the appeal be allowed against the entirety of the verdict and that the said High Court order be set aside and that the plaintiff's claim for defamation by reason of the drug dealing allegation be dismissed and that the plaintiff's claim in relation to the loan sharking allegation be remitted to the High Court for retrial...

that the plaintiff do pay to the defendant the costs of the appeal and two-thirds of the costs in the High Court ...

that the plaintiff do repay to the defendant the sum of €900,000 which was paid out on foot of said High Court order ...

6 In effect, the Court of Appeal, in the judgment of Hogan, Kelly and Irvine JJ overturned the verdict of the jury that the plaintiff was not a drug dealer. In dismissing the plaintiff's claim for defamation on that score, the Court of Appeal found as a fact that he was a drug dealer. Consequently, he had no entitlement to damages. The smaller issue relating to illegal loan practices was remitted for retrial. Leave for appeal to this court from the Court of Appeal was granted on 18 ^th February 2016, [2016] IESCDET 27.

Issues certified for appeal

7 The issues certified for appeal in the Court's determination of 18 ^th February 2016 include these three issues:

(i) 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;

(ii) 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;

(iii) 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.

8 There are also two other matters. The Court, firstly, also certified a question as to the present legal status in this State of the rule in Brown v Dunne, 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. Having briefly considered that issue, there remains, secondly, a consideration of the appropriate order on appeal, it now being over 17 years since the offending article was published in the Sunday World newspaper.

Reasoning of the Court of Appeal

9 The judgment of the Court of Appeal is cast as integral to the constitutional claim to freedom of expression asserted in paragraph 10 of the newspaper's defence. Before the Court of Appeal, this argument was not in the newspaper's written submissions. Counsel for the newspaper does not now recall making that point orally. Hogan J reasoned thus at paragraph 59:

It is true, of course, that ... neither the Constitution nor the European Convention of Human Rights gives any right to defame another under the guise of freedom of expression. The converse, however, is also true: if the published words are true in substance or in fact, then the author has a constitutional right by virtue of...