McGarth v Independent Newspapers (Ireland) Ltd

• Jurisdiction: Ireland
• Judgment Date: 21 April 2004
• Date: 21 April 2004
• Docket Number: [2002 No. 10137P]
• Court: High Court

McGarth v. Independent Newspapers (Ireland) Ltd.

Patrick McGarth

Plaintiff

and

Independent Newspapers (Ireland) Limited

Defendant

[2004] IEHC 157

[2002 No. 10137P]

High Court

Defamation - Accord and satisfaction - Defamatory meaning - Test to be applied - Burden of proof - Purported correction by defendant - Existence of identifiable, complete and certain agreement - Whether words capable of bearing alleged meaning - Context of alleged defamatory material - Whether article considered in isolation.

The defendant published an article and photograph of the plaintiff in its newspaper. The plaintiff claimed that the article was not accurate and as a result he was defamed. The plaintiff contacted the defendant and sought an apology. The defendant refused and without the plaintiff's consent published a correction in a subsequent addition of the newspaper. The plaintiff argued that this subsequent article further defamed him as it appeared under a different article relating to terrorism.

The defendant argued that the subsequent article amounted to an accord and satisfaction of the plaintiff's cause of action in the first article and that the subsequent article was not capable of bearing the defamatory meaning alleged.

The High Court (Kearns J.) directed the trial of a number of preliminary issues, including, whether the subsequent article amounted to an accord and satisfaction of the plaintiff's cause of action in relation to the initial article and whether the subsequent article was capable of bearing the alleged defamatory meaning.

Held by the High Court (Gilligan J.), in determining the preliminary issues, 1, that, in determining whether the subsequent article operated as an accord and satisfaction of the cause of action, the onus of proof rested on the moving party and the threshold was the balance of probabilities.

2. That the central requirements of a valid compromise was that consideration existed, the agreement could be identified and was complete and certain and, that the parties intended to create legal relations.

3. That in respect of an agreement over an apology the parties had not been ad idem. Consequently the defendant had not discharged the onus of proof that there was a complete and certain agreement.

4. That, when determining a preliminary issue as to whether an article had a defamatory meaning, the court looked at what the words conveyed to the mind of the ordinary reasonable fair minded reader and determined the single meaning which the publication conveyed to the notional reasonable reader and based the verdict on the assumption that this was the one sense which all readers understood.

5. That, it was for the court to decide, as a matter of law, whether the article was capable of bearing a defamatory meaning in that it was for the court to say whether the publication was fairly capable of the construction which made it libellous and it was for the jury to say whether in fact such construction under the circumstances ought to be attributed to it.

6. That, in order to determine the natural and ordinary meaning of the complained words, it was necessary to take into account the context in which the words were used and the mode of publication. The plaintiff could not select an isolated passage in an article and complain of that alone if other parts of the article shed a different light on the passage.

Charleston v. Newsgroup Newspapers Ltd. [1995] 2 A.C. 65 considered.

7. That the court should avoid an over elaborate analysis of the article because the ordinary reader would not analyse the article in the same manner as a lawyer or accountant would analyse documents or accounts. The court should not take a too literal approach to its task.

Cases mentioned in this report:-

Charleston v. Newsgroup Newspapers Ltd. [1995] 2 A.C. 65; [1995] 2 W.L.R. 450; [1995] 2 All E.R. 313.

Conlon v. Times Newspaper Ltd. [1995] 2 I.L.R.M. 76.

Preliminary issue

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Gilligan J., infra.

The matter was commenced by plenary summons dated the 23rd July, 2002. The defendant by way of motion on notice dated the 21st January, 2003, sought the trial of a number of preliminary issues. The High Court (Kearns J.) identified issues to be determined before the plenary hearing, including a determination, whether the subsequent article amounted to an accord and satisfaction of the plaintiff's cause of action in relation to the initial article and whether the subsequent article was capable of bearing the alleged defamatory meaning.

The trial of these preliminary matters came on for hearing before the High Court (Gilligan J.) on the 13th and 14th November, 2003.

Cur. adv. vult.

Gilligan J. 21st April, 2004

1 The plaintiff in these proceedings is a fitter employed by C.I.E. The defendant is the publisher, printer and proprietor of the Evening Herald newspaper.

2 On or about the 21st September, 2001, the defendant caused to be printed and published in its edition of the Evening Herald a photograph of the plaintiff above an article entitled "Eircom investors still hold out for better bid." The photograph of the plaintiff contained a caption which stated "losses; businessman Pat McGarth stands to lose thousands after investing £50,000 in Eircom."

3 The plaintiff alleges that he is not in fact a business man but is employed as a fitter with Irish Rail, has no personal wealth and in fact borrowed money to invest in Eircom shares. In addition, the plaintiff said that he has been a trade union shop steward for many years and enjoyed the trust and confidence of his fellow workers who understood him to be in similar economic circumstances to themselves.

4 The plaintiff pleads, by...