De Rossa v Independent Newspapers Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Kinlen
• Judgment Date: 03 April 1998
• Neutral Citation: [1998] IEHC 60
• Date: 03 April 1998

[1998] IEHC 60

THE HIGH COURT

1993 No. 5775 P

DE ROSSA v. INEPENDANT NEWSPAPERS LTD

BETWEEN

PROINSIAS DE ROSSA

PLAINTIFF

AND

INDEPENDENT NEWSPAPERS LIMITED

DEFENDANT

Citations:

CUMMINS, STATE V MCRANN 1977 IR 78

AG V CONNOLLY 1947 IR 213

AG V O'KELLY 1928 IR 308

EARLE, IN RE 1938 IR 485

CONSTITUTION ART 38

CONSTITUTION ART 38.5

CONSTITUTION ART 30

HAUGHEY, IN RE 1971 IR 217

MCENROE V LEONARD UNREP PARKE 9.12.1975

KEEGAN V DE BURCA 1973 IR 223

H, STATE V DALY 1977 IR 90

DPP, STATE V WALSH 1981 IR 412

KELLY V DUIGHAN 1984 ILRM 424

LAW REFORM COMMISSION PAPER ON CONTEMPT OF COURT CH 8

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)(c)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)(b)

S (PS) V INDEPENDENT NEWSPAPERS (IRL) LTD UNREP BUDD 22.5.1995

CONSTITUTION SAORSTAT EIREANN

CONSTITUTION ART 50

BROWN, STATE V FERAN 1967 IR 147

Synopsis

Constitutional

Libel; criminal contempt; right to trial by jury; whether the defendant is entitled to a trial by jury in accordance with the Constitution; whether the issues to be resolved were questions of fact or of law; whether the D.P.P. rather than the plaintiff was the appropriate person to process the matter; Articles 30 & 38 of the Constitution Held: Issue was whether the articles were a contempt of court; trial by judge alone (High Court: Kinlen J.03/04/1998) - [1998] 2 ILRM 293

De Rossa v. Independent Newspapers Limited

1 Judgment delivered this 3rd day of April 1998 by Mr. Justice Kinlen

2 This Court is presently concerned with a specific but important point.

3 This application arises out of the alleged conduct of the Defendant in and about a libel action taken by the Plaintiff against the Defendant. The hearing of the libel action proceeded before the Honourable Mr. Justice McCracken and a jury on the 5th November, 1996 and lasted for nine days. The facts are set out by Ms. Eimear McKenna, the solicitor appearing for the Plaintiff in an affidavit sworn on the 29th November, 1996. In that Affidavit she states:-

4 2 "4. At an early time in the proceedings the Defendant accepted that Mr. de Rossa had not signed a letter dated the 15th day of September, 1986 and allegedly sent by the Workers Party to the Central Committee of the Communist Party of the Soviet Union. However, the attitude taken by Counsel for the Defendant on this point was not consistent. In particular, on the fourth day of the hearing there was a significant exchange in front of the jury concerning the questioning of the Plaintiff by Counsel for the Defendant...... At question 241, Counsel for the Defendant described the letter in question as "letter that you wrote". This was withdrawn and it was then described as a letter "which you are alleged to have written and signed". After further objection Counsel for the Defendant described it as "a letter that bears your name whether it is your signature or not is a matter in issue". Of course at this stage of the trial the Defendant had withdrawn any suggestion that the letter was signed by Mr. de Rossa and there was no allegation before the Court that Mr. de Rossa had signed the letter."

5 3 "5. This manner of conduct of the case was clearly a matter of concern to the Plaintiff and his legal advisers. Notwithstanding this, it was made clear on a number of occasions by Counsel for the Plaintiff that given the Plaintiff's unusual situation he could not afford discharge of the jury."

6 4 "6. I shall turn now to the coverage of the libel action by the Defendant. As early as the third day of the hearing, Mr. Justice McCracken (as a result of an error in reporting by RTE) made the following statement:-

7 "I am sure the Press will take great care that reporting is accurate because words are very important. Individual words are very important, but obviously mistakes can be made. So long as they are remedied immediately they probably do not do any harm.""

8 5 "7. The Defendant published "The Sunday Independent" on Sunday, 10th November......" (with several relevant articles).

9 6 "8. The following Friday these articles were brought to the attention of the Honourable Court, Mr. Justice McCracken by Counsel for the Plaintiff.

10 She then refers to the transcript and to the exchange between Counsel for the Plaintiff and the trial judge. She states that Mr. Aengus Fanning, Editor of the Sunday Independent, was in Court throughout and therefore presumably would have heard the comments of the Judge which were as follows:-

11 "I do not think, by the way, this only applies to the Defendant's newspaper. I think that it is a general comment which he applied to all newspapers. They certainly can report what happened in Court, but comments should be restricted at this stage because of the fact that the jury are going to read newspapers and that they must decide the case of what they hear in Court and not on the opinion of journalists, however, noteworthy that opinion might be or however, noteworthy, the journalist might be. It is very unfair on the jury to ask them to split their minds and concentrate on what was said when particularly the Sunday Papers should entertain comments which I know none of the journalists, I am quite sure, would make any comment on anything said outside the hearing of the jury but even comment as opposed to fact, I think should be avoided if at all possible. I think most journalists know the line."

12 There were three articles in the Sunday Independent on the 10th November, 1996. Two of them were by Gene Kerrigan and the third one by Jonathan Philbin Bowman."

13 7 "9. On Sunday, the 17th November, 1996, the Defendant published a number ???of articles??? concerning the action. In Ms. McKenna's Affidavit, there is only one article in relation to this matter. It is an article by Gene Kerrigan published in the Sunday Independent of the 17th November, 1986. The matter came before Mr. Justice McCracken on the seventh day of the trial. Mr. Hardiman who is acting for the Plaintiff stated just after 4 p.m:-

14 "There is something I would like to mention. Last weekend there was very considerable publicity in the Defendant's newspaper. I am afraid ???we??? innocently thought last Sunday the case might be over by this weekend. That was a very serious misapprehension and publicity in regard to "drug dealing", "prostitution", "bank robbery", "adultery", "anything as long as is actionable". "See you in Court but please hurry, there are only 43 days to Christmas" and "I could use the cash" - things of this sort - "how I long to be libelled, just a small one would do" - plainly, a newspaper can say whatever they like once the case is over but this is a crude attempt to influence the jury - lest it should be unfortunately necessary to approach it in another way after the weekend."

15 The Judge then stated what I have already recited.

16 8 "10. On the next day of the hearing of the libel action (Tuesday, 19th November) the jury was discharged on application by the Plaintiff. While I understand that the transcript to this application is available to this honourable Court I believe it is important to point out that Counsel for the Plaintiff indicated terms in which the matter could be dealt with without the discharge to the jury. These terms were not acceptable to the Defendant. Instead the Defendant instructed its Counsel to state that it "stood over" Mr. Kerrigan's article. The following day Mr. Kerrigan was introduced in evidence by the Defendant in circumstances where the learned trial judge had made it quite clear that he would place no obligation on Mr. Kerrigan to give evidence. Mr. Kerrigan was cross examined by Counsel for the Plaintiff and on the afternoon of Wednesday, the 20th November, the learned trial judge made his order as to costs in this matter."

17 9 "11. On Sunday, 24th November, 1996 the Defendant published in the Sunday Independent three articles concerning the case before Mr. Justice McCracken.......... I believe and am advised that the effects of the articles both in their specific terms and taken as a whole is to attempt to prejudice the Plaintiff's position as a litigant against the Defendant. In particular, I believe and am advised with the effect and intention of these articles appears to be to give the impression that a dishonest and unjustified application was made to discharge the jury in circumstances where the impression was given that the Plaintiff's case was not running well. There is a clear implication in one of the articles that the Plaintiff will not in fact resume his action against the Defendant and this could clearly have the effect of leading persons who may be jurors at that trial to believe the Plaintiff is only re-entering the matter reluctantly and with little hope of success. In addition it is contended that the decision of the Honourable Mr. Justice McCracken is incorrect. I also believe that there is an attempt to intimidate Counsel from acting on behalf of Mr. de Rossa by virtue of the factually inaccurate and deliberately abusive nature of the article written about one of the Plaintiff's Counsel."

18 The articles published on the 24th November, 1996 in the Sunday Independent were written respectively by Eamon Dunphy, Gene Kerrigan and Stephen Dodd.

19 The afforegoing Affidavit was the basis for a notice of motion dated the 29th November, 1996, making application to the Court on the 9th December, 1996.

20 On Friday, 29th November, 1996 Mr. Justice Carney ordered that an Order of Sequestration directed to Independent Newspapers Plc. do issue because of its contempt of this Court committed by publishing to the public in the issue of the Sunday Independent of the 24th day of November, 1996 the articles exhibited in Exhibit EMcK3 in the said Affidavit of Eimear McKenna. By said order Mr. Justice Carney proceeds:-

"Unless cause be shown...