Murphy v Times Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Barrington J.
• Judgment Date: 16 May 1996
• Neutral Citation: 1996 WJSC-SC 1923
• Date: 16 May 1996
• Court: Supreme Court
• Docket Number: [S.C. No. 189 of 1990]

1996 WJSC-SC 1923

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Barrington J.

189/190/193-90

MURPHY v. TIMES NEWSPAPERS LTD

BETWEEN:-

THOMAS MURPHY

PLAINTIFF/APPELLANT

AND

TIMES NEWSPAPERS LTD., ANDREW NEIL, ANDREW HOGG, BARRIE PENROSE, CHRIS RYDER, AND ROWENA WEBSTER

DEFENDANTS/RESPONDENTS

AND

MURPHY v. TIMES NEWSPAPERS LTD

PATRICK MURPHY

PLAINTIFF/RESPONDENT

AND

TIMES NEWSPAPERS LTD., ANDREW NEIL, ANDREW HOGG, BARRIE PENROSE, CHRIS RYDER, AND ROWENA WEBSTER

DEFENDANTS/APPELLANTS

1 JUDGMENT delivered on the 16th day of May 1996 by Barrington J. [NEM DISS]

2 These appeals arise in two defamation actions which were heard jointly before Mr. Justice Lynch and a Jury on the 20th, 21st, 22nd, 23rd, 27th and 28th days of March, 1990.

3 The two Plaintiffs are brothers. Thomas Murphy resides at Ballybinaby, Dundalk in the County of Louth on a farm which straddles the border with County Armagh. Patrick Murphy lives nearby on a farm at Cornonagh, Crosmaglen in the County of Armagh. He also farms at Ballybinaby.

4 The first named Defendant is the publisher and proprietor of "The Sunday Times" which has a large circulation in the United Kingdom and in Ireland. The second named Defendant is the editor of the said newspaper. The third, fourth, fifth and sixth named Defendants are journalists attached to the said newspaper who together wrote the newspaper article complained of in these proceedings.

5 This article appeared in the issue of the Sunday Times for the 30th June, 1985 under the title "Portrait of a Check-in Terrorist".

6 Inset at the top of the said article is a paragraph in bold print containing the following words - "Last week the police announced that they had discovered an IRA plan to plant bombs in twelve seaside resorts. They detained over a score of people and appeared to have destroyed one of the Provisional IRA's active service units. But the triumph has a dark side: there are more of these units. How are they created and how are they destroyed? A report by Andrew Hogg, Barrie Penrose and Chris Ryder".

7 The article itself, having dealt with an abortive attempt to blow up an hotel in London by a terrorist who had "checked in"as a guest proceeded as follows:-

"In Ireland itself the planning of mainland campaigns is surrounded now by a more tightly knit security. The IRA's army council last February appointed a farmer in the republic, called "Slab" Murphy (which is not his real name) to be it's Operations Commander for the whole of Northern Ireland. He has no conviction for terrorist activities and this, plus the fact that he is on the other side of the border makes him a security headache hard to cure.

Murphy is likely to have had to sanction certain key provisionals travelling to Britain to take part in this Summer's planned bombing campaign. It would have been a task made easier to keep secret by the fact that his farm is close to the small town of Dundalk where IRA men on the run can gain sanctuary in "safe houses".

It would appear that the Plaintiffs" father was known as "Slab" Murphy to distinguish him from other Murphys who lived in the area and it would appear that his three sons were known collectively as "The Slab Murphys" and individually as "Slab Murphy". The Plaintiffs therefore claimed that the article was understood to refer to each of them individually and that it was grossly defamatory.

PROCEDURE

The Defendants original defence to each of the Plaintiffs" claims was a traverse in which each of the Plaintiffs was put on proof of all of his allegations. However by letter dated the 13th February 1990 the Defendants, pursuant to Order 36, Rule 36 of the Rules of the Superior Courts served a Notice in mitigation of damages in each case. These Notices were in identical terms and read as follows:-

"Take notice that at the trial of this Action the Defendants intend to give evidence of the following matters with a view to mitigation of damages:-

(1) That the Plaintiff is a man of worthless reputation and character,

(2) That the Plaintiff is a man of violence,

(3) That the Plaintiff, in April 1989, was involved in an attack on Customs Officers engaged in the investigation of smuggling of hydro-carbon fuels".

8 That was the state of the pleadings when the matter came on for hearing before Mr. Justice Gannon and a Jury in February, 1990. During the course of that trial the Defendants applied to amend their defences to plead justification. Mr. Justice Gannon granted this application on terms that the Defendants should pay the entire cost of the Actions up to the date of the amendments.

9 Subsequently on the 23rd February, 1990 the Defendants delivered their amended defences which were identical in each Action.

10 At paragraph 8 of their amended defences the Defendants pleaded as follows:-

"If the description Slab Murphy is applied to the Plaintiff, which is denied, the words complained of are true in substance and in fact insofar as they assert that the Plaintiff was a prominent member of the Provisional IRA".

11 At paragraph 11 of their amended defences the Defendants pleaded as follows:-

"The Defendants plead in mitigation of damages that the Plaintiff was and was known to be at all material times actively supportive of the Provisional IRA."

12 It will be noted that the plea of Justification raised by the Defendants was a plea of partial justification only. They did not attempt to justify the suggestion contained in the article that Slab Murphy was the organiser of a campaign of mass murder of innocent civilians at twelve seaside resorts in England.

13 However, at the trial, the subject matter of the present appeal, Counsel for the Plaintiffs submitted that the substantial defence of the Defendants was now justification and that therefore the Defendants should lead with their evidence on justification after the Plaintiffs had given formal evidence of publication and that the article was understood to refer to them. Mr. Justice Lynch rejected this application on the basis that it would be too confusing for the Jury to hear the Plaintiffs first, then the Defendants and finally the Plaintiffs in rebuttal.

THE VERDICT

14 At the conclusion of the proceedings the Jury in the Thomas Murphy case answered the questions on the issue paper as follows:-

15 (1) Did the words complained of refer and were they understood by reasonable people to refer to Thomas Murphy? Answer: Yes.

16 (2) Did the words complained of mean and were they understood by reasonable people to mean that:-

17 (a) Thomas Murphy was a prominent figure in the Provisional IRA, an unlawful organisation and an organisation associated in the public mind with unlawful violence, brutality and murder. Answer: Yes.

18 (b) Thomas Murphy planned murder and the bombing of property. Answer: Yes.

19 (c) Thomas Murphy was prepared to sanction plan and countenance the bombing of twelve seaside resorts in Britain? Answer: Yes.

20 (d) Thomas Murphy sought, planned, sanctioned and aimed to cause indiscriminate slaughter at twelve seaside resorts in Britain? Answer: Yes.

21 (3) If you answer "yes" to question one and "yes" to paragraph (a) and/or (b) of question 2 are such words and meanings in question 2 (a) and/or (b) true in substance and in fact that is to say:-

22 (a) Thomas Murphy was a prominent figure in the Provisional IRA, an unlawful organisation and an organisation associated in the public mind with unlawful violence brutality and murder? Answer: Yes.

23 (b) Thomas Murphy planned murder and the bombing of property. Answer: Yes (please note that if you answer yes to either part of this question then no damages are to be awarded in respect of the words and meaning so found to be true irrespective of the answers to any of the other questions in this issue paper).

24 (4) If you answer "yes" to question one and "yes" to any part of question two was Thomas Murphy:-

25 (a) Actively supportive of the Provisional IRA? Answer: Yes.

26 (b) A man of worthless character. Answer: Yes.

27 (c) A man of violence. Answer: Yes.

28 (5) If you answer yes to question one and yes to any part of question two then assess damages (if any) for Thomas Murphy having regard first your answer to question three above: secondly to your answer to question four above: and thirdly to the whole of the evidence in and the conduct of the case in general. Answer: Nil".

29 On this basis the learned trial Judge dismissed Thomas Murphy's case and awarded the costs to the Defendants.

30 In Patrick Murphy's case the questions on the issue paper were the same and the answers to questions one and two were the same. The answers to question three however were different and were as follows:-

31 (3) If you answer yes to question one and yes to paragraph (a) and/or (b) of question two are such words and meanings in question 2 (a) and/or (b) true in substance and in fact that is to say:-

32 (a) Patrick Murphy was a prominent figure in the provisional IRA, an unlawful organisation and an organisation associated in the public mind with unlawful violence brutality and murder? Answer: No.

33 (b) Patrick Murphy planned murder and the bombing of property. Answer: No (please note that if you answer "yes" to either part of this question then no damages are to be awarded in respect of the words and meanings so found to be true irrespective of the answers to any of the other questions in this issue paper).

34 (4) If you answer "yes" to question one and "yes" to any part of question two was Patrick Murphy:-

35 (a) Actively supportive of the Provisional IRA? Answer: Yes.

36 (b) A man of worthless character. Answer: Yes.

37 (c) A man of violence. Answer: No.

38 (5) If you answer "yes" to question one and "yes" to any part of question two then assess damages (if any) for Patrick Murphy having regard to first...