Nolan v Sunday Newspapers Ltd (trading as Sunday World)

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 15 May 2019
• Neutral Citation: [2019] IECA 141
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2017 304,[C.A. No. 304 of 2017]
• Date: 15 May 2019

BETWEEN:

BRIAN NOLAN

PLAINTIFF/RESPONDENT

- AND -

SUNDAY NEWSPAPERS LIMITED (trading as SUNDAY WORLD)

DEFENDANT/APPELLANT

[2019] IECA 141

Peart J.

Peart J.

Whelan J.

Baker J.

Record Number: 2017 304

THE COURT OF APPEAL

Defamation – Damages – Right to privacy – Respondent seeking damages in respect of breaches of his constitutional right to privacy – Whether the right to privacy was engaged

Facts: The plaintiff/respondent, Mr Nolan, commenced proceedings seeking an award of damages for defamation against the Sunday World newspaper because he considered that his good name and reputation had been seriously traduced in two separate editions of that newspaper on the 15th July 2012 and again on the 3rd March 2013. He also claimed damages in respect of breaches of his constitutional right to privacy. The proceedings were determined in favour of the respondent, and by order dated 14th June 2017 (O’Connor J sitting without a jury) he was awarded damages for defamation in the amount of €310,000, being €250,000 for general damages, €30,000 for aggravated damages, and €30,000 for punitive damages. The trial judge concluded that the right to privacy was not engaged. The defendant/appellant, Sunday Newspapers Ltd, appealed to the Court of Appeal not only against the award of those damages, but also against the trial judge’s finding that the respondent was defamed by the said articles, and that his reputation had been damaged.

Held by Peart J that he found no basis for interfering with the trial judge’s conclusion that it was the erroneous reporting of the respondent as the organiser of sex parties that caused injury to his reputation and good name; there was credible evidence to support that conclusion. Peart J was satisfied that the failure of the appellant to give any evidence whatsoever to substantiate the defence was sufficient to determine that it had not been made out by the appellant. Peart J held that the trial judge did not err in making an award of €30,000 under the heading of aggravated damages, as well as €30,000 for punitive damages. The trial judge had explained his reasons for doing so, and Peart J considered that the facts of the case justified such awards.

Peart J held that he would allow the respondent’s cross appeal and declare that his constitutional right to privacy was breached by the appellant. Peart J held that he would not alter the overall level of the award of damages. However, he did feel that the respondent was entitled to a declaration that the publications of the photographs in the Sunday World editions of the 15th July 2012 and the 3rd March 2013 constituted a serious breach of his constitutional right of privacy, and that such breach should be recognised by a meaningful award of damages under that particular heading. Peart J held that his constitutional right to protection of this privacy right in respect of those photographs was not vindicated by the remedy available to him for defamation and the award of damages under that heading, since the latter claim had been found proven only on the basis that he was falsely named as an organiser of the parties. For that reason alone, Peart J held that he would vary the High Court order by recalibrating the award of damages made by the trial judge in order to reflect an award both for defamation and for breach of privacy, and by making the declaration referred to. Peart J held that he would therefore award the sum of €200,000 for general damages for defamation, as well as the amount of €30,000 for punitive damages, and €30,000 for exemplary damages, and would in addition to making the declaration referred to, make an award of €50,000 damages for breach of the respondent’s constitutional right to privacy.

Appeal dismissed and cross appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 15th DAY OF MAY 2019

1 The plaintiff/respondent commenced these proceedings seeking an award of damages for defamation against the Sunday World newspaper because he considered that his good name and reputation had been seriously traduced in two separate editions of that newspaper on the 15th July 2012 and again on the 3rd March 2013. He also claimed damages in respect of breaches of his constitutional right to privacy.

2 The proceedings were determined in favour of the respondent, and by order dated 14th June 2017 (O'Connor J. sitting without a jury) he was awarded damages for defamation in the amount of €310,000, being €250,000 for general damages, €30,000 for aggravated damages, and €30,000 for punitive damages. The appellant appeals not only against the award of these damages, but also against the trial judge's finding that the respondent was defamed by the said articles, and that his reputation had been damaged. The trial judge concluded that the right to privacy was not engaged.

3 The articles in question were salacious in nature, and were accompanied by photographs of the respondent attending what were described as sex parties or “swingers” parties, and in the company of females who I will describe simply as being scantily clad. For the purpose of this appeal any further detail as to the nature of the parties themselves, the activities that may occur between consenting adults attending same, or the manner in which attendees shown in the accompanying photographs were clad, is unnecessary.

4 The articles in question not only described him as someone who attended such parties (which he does not deny – in fact the photographs would preclude any such denial), but also as an organiser of such parties. He denies that he was an organiser, and, indeed, the appellant does not seek to stand over that part of the story. In its defence the appellant did not plead truth as a defence under s. 16 of the Defamation Act, 2009 (‘the 2009 Act’). Nor did it plead “honest opinion under s. 20, nor “fair and reasonable publication on a matter of public interest” under s. 26 thereof. The defences relied upon were (a) that the words and photographs complained of, whether in their natural and ordinary meaning or by way of innuendo or otherwise, did not bear, nor were they understood to bear or capable of bearing the meanings ascribed to them by the respondent at para. 20 of his statement of claim or any defamatory meaning; and (b) that the articles and photographs were published on an occasion of privilege, namely that they were published in good faith as part of the appellant's lawful and legitimate reporting on matters of public interest.

5 The meanings attributed by the respondent in his statement of claim at para. 20 thereof were the following:-

(i) The plaintiff is involved in the provision of sexual opportunities for financial gain;

(ii) the plaintiff helped organise swingers” parties across Ireland;

(iii) the plaintiff has sought or permitted newspaper publicity in relation to his sex life;

(iv) the plaintiff allowed a newspaper to publish photographs of a private and intimate nature of him at private parties in intimate poses with partially clad women;

(v) the plaintiff's occupation was organising sex parties across Ireland, and

(vi) that the plaintiff was involved in the sex trade.

6 While the appellant acknowledged during the trial of this action that it had incorrectly referred to the respondent as an organiser of such parties in these articles, rather than a mere attendee, it went on to argue that any damage to the respondent's good name and reputation arose from his attendance at the parties, and not the erroneous reference to him as an organiser.

7 In relation to the defence of privilege, as particularised, namely that the articles constituted a fair and reasonable publication on a matter of public interest, the appellant relied on its belief that the respondent is ‘a public figure’. In that regard, reliance was placed upon the fact that (a) he was a well-known and prominent GAA footballer having represented Kildare in the 1992 Leinster football final against Dublin, (b) that his brother had been in the past Mayor of Kildare, (c) that he was a friend of a named prominent politician, and (d) that he had achieved notoriety in the media in 2002 when he was convicted of laundering money for a well-known criminal, which resulted in a suspended prison sentence and a fine of €25,000.

8 Prior to the publication of the first article on the 15th July 2012 a journalist employed by the appellant had called unannounced and without invitation to the respondent's home in an effort to seek comments on the article that it was proposed would be published. Despite protest from him, and despite his urging the journalist that any publication would cause serious damage to his family relationships, including with his young children, the publication went ahead. I should add that by this time, the respondent was separated from his wife but enjoyed regular and consensual access with and shared custody of his children, then aged twelve and six respectively. He was fearful that those arrangements would be put in jeopardy by the proposed publication.

9 The second publication occurred on 3rd March 2013 without any prior warning, and the respondent considered that it compounded the damage caused by the earlier publication. It was only after the second publication that the respondent consulted his solicitor. Following the first publication the respondent had taken no action but he hoped that the newspaper would not repeat the publication.

10 As for the damage caused by these publications, the respondent pleaded the following in his statement of claim:-

(i) It caused the plaintiff's wife, from whom he is separated, to question his suitability to have contact with his children, and to remove them from his care.

(ii) It caused the plaintiff's wife to change the surnames under which his children were enrolled in school and by which they were referred so as to avoid association with him.

(iii) The plaintiff was...