Nolan v Laurence Lounge t/a Grace's Pub
 IEHC 352
THE HIGH COURT
CIRCUIT COURT APPEAL
[2016 No. 219 CA]
Damages – Defamation – Excessive publication – Respondent seeking damages for defamation – Whether the Circuit Court judge's assessment of damages was appropriate
This is an appeal from a decision of Her Honour Judge Linnane of the Circuit Court made on 4th October, 2016. The plaintiff claims damages for defamation arising from an occurrence in a public house in Rathmines, Dublin, on the evening of 24th April, 2013 when the legality of a €10 note which he proffered for an alcoholic drink was called into question by a barman employed by the defendant. He alleges that his reputation was traduced on two occasions within approximately ten minutes by the words and conduct of the barman. It is pleaded that the words spoken by, and the conduct of, the defendant's barman were such as to infer in their natural and ordinary meaning that the plaintiff was guilty of fraudulent conduct, that he was guilty of an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001, and that he could not be trusted.
The claim is denied. While the defendant accepts that the legality of the €10 was called into question; the words, the manner in which they were spoken and the actions of the defendant's barman are disputed. The defences of truth (formerly justification) and, in the alternative, qualified privilege are relied upon. Her Honour Judge Linnane in finding for the plaintiff awarded damages of €5,000. The defendant appeals from this award.
A number of legal issues have arisen including the ambit of the defence of qualified privilege in a case such as this and the extent to which the defence of qualified privilege may be pursued where the defence of truth, formerly justification, is also relied upon.
Mr. Nolan was born on 14th August, 1964. He is a fast food delivery driver by occupation, making deliveries in the Harold's Cross, Rathgar and Donnybrook areas. In April, 2013 he resided at Leinster Road, Rathmines.
The defendant is the proprietor of a public house at Rathgar Road, Rathmines, Dublin, which trades under the name ' Grace's'.
On the evening of 24th April 2013, Mr. Nolan had visited a licensed premises where he consumed one drink. On his way home, he went into the defendant's premises to purchase another drink. He had been a customer on the premises on two or three previous occasions and he lived nearby. He believes he would have been known in the area and may have been known to customers in the public house.
On entering he proceeded to the bar counter area. There were between eight and ten customers on the premises, two of whom were at the bar counter speaking to the barman. Another two customers were sitting at the counter and the remaining four to six people were at tables within eight feet of the bar. Mr. Nolan believes that he may have known one of the two men speaking to the barman but was unsure whether he was known to that person.
As he approached the counter, the barman, Mr. Bond was directly in front of him. Mr. Nolan did not have to attract his attention. He ordered an alcoholic drink, being a pint of lager. As he placed his order, he put a €10 note on the counter. According to Mr. Nolan, rather than dispensing the drink the barman picked up the €10 note, held it aloft and said, 'I can clearly see that that is a fake' or ' dud'. On further questioning, Mr. Nolan believed that the barman used the word ' fake', rather than ' dud'. He said that those words were uttered in a loud manner and in the presence of other persons who were sitting on bar stools at the counter. Mr. Nolan felt nervous. He believed that he was being called a cheat and found the incident quite upsetting. He protested and informed Mr. Bond that the note had come from a reliable source; that it was a good note. Mr. Bond reiterated that it was not a good note. Mr. Nolan informed Mr. Bond that he had obtained the note from either the post office or a bookmaker, but Mr. Bond was ' not having any of it' and reiterated ' I can see clearly that that is a fake'. According to Mr. Nolan, this was said once more, in a loud voice. Mr. Nolan gave evidence that there was a quiet area in the pub to which Mr. Bond could have brought him to discuss the matter.
The plaintiff requested Mr. Bond to return the note, which he did. Thereafter Mr. Nolan decided to go to the nearby Rathmines Garda Station because he took offence at being called, in his own words, ' a cheat'. He entered the public area of the garda station and waited for approximately a minute for a member of An Garda Síochána to attend him. He had a conversation with a member of An Garda Síochána, explained his predicament and showed him the note. He was advised by the garda that it was a civil matter. This garda took the note, went out of view, had a conversation with a colleague, returned and confirmed to Mr. Nolan that the note was good. Mr. Nolan described his feelings of relief and he decided to return to Grace's public house to vindicate himself. There were a number of members of An Garda Síochána in court during the hearing of the appeal, but he did not recognise any one of them as being the person with whom he spoke.
On his return Mr. Nolan approached the barman. The customers who had been on the premises earlier were in the same places. He put the note on the counter and informed Mr. Bond that he had been to the garda station, that the note had been checked and that it was legal tender. Mr. Nolan repeated his request for a drink. Mr. Bond replied that he did not care where he had been, that the note was not going to be accepted. He asked Mr. Nolan to leave. Mr. Nolan requested the barman to sign the note, to prove that this was the note that had been produced. Mr. Nolan did not understand why Mr. Bond refused to sign it. To him it beggared belief that twice within the space of ten minutes he had such discussion with Mr. Bond and on the second occasion, in a raised voice, was asked to leave. Mr. Nolan's evidence is that customers also overheard this conversation. He left the premises.
On the following morning at 9.30 a.m., Mr. Nolan attended a solicitor. He wished to ' get it off his chest' because he was upset by what had occurred. He explained the history to his solicitor and showed him the note. The solicitor requested him to obtain the names of the two gardaí on duty in the public office on the previous evening. He telephoned the garda station and informed the person to whom he spoke of the previous evening's incident. He was given the names of two gardaí who were in the public office of the station at the time. He passed these names to his solicitor.
On cross-examination, while Mr. Nolan accepted that it is reasonable to query whether a note is valid if one suspects its authenticity, he would not have held it aloft for all to see. He also accepted that it was part of Mr. Bond's duty to consider whether a note was real or fake, but he objected to the manner in which this task was performed by Mr. Bond. He reiterated that Mr. Bond had insisted that the note was clearly a fake and this was done ' not in a nice fashion'. It was put to him that Mr. Bond had in fact pulled the alcoholic drink, placed it in front of him, and it was only when he was taking the note to the till and when Mr. Bond felt the note that the query was raised. Mr. Nolan disputed this, as did he dispute the defence case that at that stage he had already taken a ' sip from his pint'. As far as he was concerned, the barman had not reached the stage of dispensing the drink.
An issue arose as to whether and in what circumstances Mr. Nolan came to disclose in evidence in the Circuit Court the name of the garda to whom he thought the report was made. In replies to particulars delivered on 28th June, 2016 he had stated that he could not recall the names of the gardaí. Mr. Nolan said in evidence that at some undetermined date, but prior to the date of the Circuit Court hearing, he recalled the name of one of the gardaí as being Garda Aran Lawlor. He gave evidence that he telephoned Rathmines Garda Station to inquire whether Garda Lawlor was stationed there. He was informed that Garda Lawlor was on patrol. Counsel for the defendant suggested that this garda's name only emerged when ' a light bulb went on' while the plaintiff was in the witness box in the Circuit Court.
The mentioning of Garda Lawlor's name by the plaintiff in the Circuit Court led thereafter to further inquiries being conducted by the defendant's advisers on this aspect of the plaintiff's evidence for this appeal. On the basis of these inquiries, it was expressly put to Mr. Nolan that he had not attended at the garda station and that the alleged conversation with the garda had not taken place. It was also put to Mr. Nolan that there was no device for checking currency in the station at that time. Statements had been obtained from members of An Garda Síochána who, according to the station duty roster, were on duty on the night in question, none of whom had a recollection of the plaintiff or the incident. Garda Lawlor, who was one of three members of An Garda Síochána called to give evidence by the defence, stated that he had no doubt that the first time he had seen Mr. Nolan was on the day of the hearing of this appeal.
In so far as he had requested Mr. Bond to sign a blank piece of paper, it was suggested to Mr. Nolan that the reason for this was the immediate contemplation to take these...
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