Proinsias de Rossa v Independent Newspapers Plc

• Jurisdiction: Ireland
• Judgment Date: 30 July 1999
• Date: 30 July 1999
• Docket Number: [S.C. No. 282 of 1997]
• Court: Supreme Court

Supreme Court

[S.C. No. 282 of 1997]

de Rossa v. Independent Newspapers plc.

Proinsias de Rossa

Plaintiff

and

Independent Newspapers plc.

Defendant

Cases mentioned in this report:-

Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373.

Barrett v. Independent Newspapers Ltd. [1986] I.R. 13; [1987] I.L.R.M. 601.

Broome v. Cassell & Co. [1972] A.C. 1027; [1972] 2 W.L.R. 645; [1972] 1 All E.R. 801.

Carson v. John Fairfax & Sons Ltd. (1993) 178 C.L.R. 44.

Crampton v. Nugawela (1996) 41 N.S.W.L.R. 176.

Cullen v. Tobin [1984] I.L.R.M. 577.

Dawson v. Irish Brokers Association (Unreported, Supreme Court, 27th February, 1997)

Desmond v. Glackin (No. 1) [1993] 3 I.R. 1; [1992] I.L.R.M. 490.

Girvan v. Inverness Farmer's Dairy (1996) S.C.L.R. 294.

Gorman v. Mudd (Unreported, Court of Appeal, 15th October, 1992).

Hill v. Church of Scientology of Toronto (1994) 114 D.L.R. (4th) 129.

Houston v. Smith (Unreported, Court of Appeal, 16th December, 1993).

Hynes-O'Sullivan v. O'Driscoll [1988] I.R. 436; [1988] I.L.R.M. 349.

John v. M.G.N. Ltd. [1997] Q.B. 586; [1996] 3 W.L.R. 593; [1996] 2 All E.R. 35.

McCarey v. Associated Newspapers Ltd. (No. 2) [1965] 2 Q.B. 86; [1964] 3 All E.R. 947.

McCartan Turkington & Breen v. Times Newspapers Limited [1998] N.I. 358.

McDonagh v. News Group Newspapers Ltd. (Unreported, Supreme Court, 23rd November, 1993).

Murphy v. I.R.T.C. [1997] 2 I.L.R.M. 467.

Phillips v. South Western Railway Co. [1879] 4 Q.B.D. 406.

Praed v. Graham (1889) 24 Q.B.D. 53.

Rantzen v. Mirror Group Newspapers Ltd. [1994] Q.B. 670; [1993] 3 W.L.R. 953; [1993] 4 All E.R. 975.

Sinnott v. Quinnsworth [1984] I.L.R.M. 523.

Sutcliffe v. Pressdram Ltd. [1991] 1 Q.B. 153; [1990] 2 W.L.R. 271; [1990] 1 All E.R. 269.

Television New Zealand Ltd. v. Quinn [1996] 3 N.Z.L.R. 24.

Tolstoy Miloslavsky v. United Kingdom (1995) 20 E.H.R.R. 442.

Uren v. John Fairfax & Sons Pty Ltd. (1966) 117 C.L.R. 118.

Ward v. James [1966] 1 Q.B. 273; [1965] 2 W.L.R. 455; [1965] 1 All E.R. 563.

Defamation - Damages for libel - Assessment by jury - Award - Whether guidance should be given in assessment of damages - Whether award excessive - Test to be applied by appellate court - Constitution of Ireland, 1937, Article 40.3.6 - Convention for the Protection of Human Rights and Fundamental Freedoms (1953), art. 10.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgment of Hamilton C.J., infra.

A plenary summons was issued on the 19th August, 1993, [1993 No. 5775 P.] and the plaintiff delivered a statement of claim on the 10th September, 1993. The defendant delivered a defence on the 12th May, 1994. The action was first tried in the High Court by McCracken J. and a jury in November, 1996. On the 19th November, 1996, on the application of counsel for the plaintiff, the jury was discharged by McCracken J. because of the publication by the defendant of an article which may have misled or confused the jury. The action was tried for a second time in the High Court by Moriarty J. and a jury in February and March, 1997. The jury failed to come to verdict and the action was tried for a third time by Carney J. and a jury on the 15th, 16th, 17th, 18th, 22nd, 23rd, 24th, 25th, 29th, 30th and 31st July, 1997. The following questions having been submitted to the jury were answered by them as follows:-

• 1. Do the words complained of mean:

  • (a) that the plaintiff was involved in or tolerated serious crime? Answer: Yes.

  • (b) that the plaintiff personally supported anti-Semitism and violent Communist oppression? Answer: Yes.

    • 1. If the answer to 1 or any part thereof is "Yes" assess damages. Answer: £300,000.

The defendant was ordered to pay to the defendant £300,000 together with costs. Notice of appeal was filed on the 26th August, 1997, and the appeal was heard by the Supreme Court (Hamilton C.J., Denham, Barrington, Murphy and Barron JJ.) on the 8th, 9th and 10th December, 1998.

While the plaintiff, a T.D. and leader of a political party, was engaged in negotiations with other parties for the formation of a coalition government, the defendant published a newspaper article about the plaintiff and his party. The plaintiff claimed damages for libel, and alleged in his statement of claim that the article meant that he had, inter alia, been involved in and tolerated serious crime, and that he had personally supported anti-semitism and violent communist oppression, and the plaintiff further alleged that as a result of the publication of the said article that he had been injured in his character and reputation, and that he had been exposed to odium, ridicule and contempt. In its defence, the defendant,inter alia, admitted publication of the article, pleaded that it had a meaning other than that pleaded by the plaintiff, denied that the article bore the defamatory meanings pleaded by the plaintiff and in the alternative, pleaded fair comment. The action came on for hearing before the High Court (McCracken J. and a jury), which jury was discharged following publication of an article by the defendant which could have misled or confused the jury. The plaintiff's action came on for hearing a second time before the High Court (Moriarty J. and jury), which jury failed to reach a verdict. The plaintiff's action came on for hearing a third time before the High Court (Carney J. and a jury), which found for the plaintiff and awarded £300,000 damages

The defendant appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Barrington, Murphy and Barron JJ.; Denham J. dissenting), in dismissing the defendant's appeal, 1, that the assessment of damages in a defamation action in the High Court was a matter for the jury. They should base their assessment entirely on the facts as found by them. Figures awarded in other cases based on different facts were not matters which the jury was entitled to take into account.

Barrett v. Independent Newspapers Ltd. [1986] I.R. 13followed.

2. That it was not necessarily fair to compare awards for damages for loss of reputation to damages for personal injury, as compensation by damages for loss of reputation operated as a vindication of the plaintiff to the public and as consolation to the plaintiff for a wrong done and not as a monetary recompense for harm which was measurable in money.

Broome v. Cassell & Co. [1972] A.C. 1027 andUren v. John Fairfax & Sons Pty Ltd. (1966) 117 C.L.R. 118 followed.

3. That if the judge and counsel could mention figures to the jury, the proceedings would be in danger of developing into an auction. Further, if comparisons with previous libel and personal injury awards were made, the jury would be overwhelmed with figures. Such a practice would lead to confusion. Accordingly, in assessing thequantum of an award, the jury cannot be given guidelines by the court or by counsel in relation to the appropriate level of damages and the jury's attention should not be drawn to the level of damages awarded in personal injury actions or other defamation actions.

Ward v. James [1966] 1 Q.B. 273 approved.John v. M.G.N. Ltd.[1997] Q.B. 586;Rantzen v. Mirror Group Newspapers Ltd. [1994] Q.B. 670 not applied.

4. That the assessment by a jury of damages in a defamation action had an unusual and emphatic sanctity and an appellate court should be slow to interfere with such an assessment. However, the discretion of jury in the assessment of damages was not limitless and the damages awarded must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the plaintiff and the necessity to vindicate the plaintiff in the eyes of the public.

Barrett v. Independent Newspapers Ltd. [1986] I.R. 13 followed.John v. M.G.N. Ltd.[1997] Q.B. 586 considered.

5. That the appellate court was only entitled to set aside an award of damages by a jury in a defamation action if it were satisfied, in all the circumstances, that the award was so disproportionate to the injury suffered and the wrong done, that no reasonable jury would have made such an award.

6. That the successful plaintiff in a defamation action was entitled to recover, as general compensatory damages, a sum which would compensate him for damage to his reputation, vindicate his good name and take into account the distress, hurt and humiliation which the defamatory publication had caused. The most important factor was the gravity of the libel. Also relevant were the extent of publication and defendant's conduct of the action.

John v. M.G.N. Ltd. [1997] Q.B. 586 approved.

7. That having regard to the gravity of the libel and the defendant's conduct of the action, the award made by the jury was not disproportionate to the injury suffered and wrong done and was not such that no reasonable jury could have made.

Semble: That there did not appear to be any conflict between art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the common law or the Constitution.

Per Denham J.: dissenting, 1, that guidelines should be given to a jury on the level of damages awarded in previous libel cases made or affirmed by the Supreme Court, and in relation to the level of damages in personal injury cases.

John v. M.G.N. Ltd. [1997] Q.B. 586;Rantzen v. Mirror Group Newspapers Ltd.[1994] Q.B. 670;Tolstoy Miloslavsky v. United Kingdom (1995) 20 E.H.R.R. 442 followed.

2. That having regard to all the circumstances of the case, the award of £300,000 was unreasonable and disproportionate and should be reduced to £150,000.

McDonagh v. News Group Newspapers Ltd. (Unreported, Supreme Court, 23rd November, 1993) considered.

Cur. adv. vult.

Hamilton C.J. 30th July, 1999

The appeal in this case arises out of an action brought by the plaintiff in which he claimed damages for libel against the defendant.

The defamatory matter complained of was alleged to have...