Talbot v Hermotage Golf Club and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 27 July 2012
• Neutral Citation: [2012] IEHC 372
• Court: High Court
• Docket Number: [No. 850 P./2006]
• Date: 27 July 2012

[2012] IEHC 372

THE HIGH COURT

[No. 850 P./2006]

Talbot v Hermitage Golf Club & Ors

BETWEEN

THOMAS TALBOT

PLAINTIFF

AND

HERMITAGE GOLF CLUB, GOLFING UNION OF IRELAND AND EDDIE MURPHY

DEFENDANTS

RUBBER IMPROVEMENT LTD & LEWIS v DAILY TELEGRAPH LTD 1964 AC 234 1963 2 WLR 1063 1963 2 AER 151

GRIFFIN v SUNDAY NEWSPAPERS LTD 2012 1 ILRM 260 2011/24/6186 2011 IEHC 331

MCGARTH v INDEPENDENT NEWSPAPERS (IRL) LTD 2004 2 IR 425 2004/34/7876

CAPITAL & COUNTIES BANK LTD v GEORGE HENTY & SONS 1882 7 APP CAS 741

BOSTON v WS BAGSHAW & SONS 1966 1 WLR 1126 1966 2 AER 906

ADAM v WARD 1917 AC 309

HENWOOD v HARRISON 1871-72 7 LR CP 606

WRIGHT v WOODGATE 150 ER 244 1835 2 CR M & R 573

HARRIS v ARNOTT & ORS 1889 26 LRI 55

HORROCKS v LOWE 1975 AC 135 1974 2 WLR 282 1974 1 AER 662

MERCANTILE MARINE SERVICE ASSOCIATION v TOMS 1916 2 KB 243

DEFAMATION

Libel

Publication - Qualified privilege - Malice - Golf Club - Unincorporated association with rules - Conspiracy claim - Handicap certificate - Imputation as to cheating at golf - Words âÇÿgeneral play (handicap building)' used - Reflection of true playing ability - Handicapping score scheme - Natural and ordinary meaning - Score cards submitted to handicap committee - Playing handicap score adjusted on numerous times by committee - Written complaint about reduction in handicap to all members of committee - Minutes of meetings - Training on new handicap system given to committee members - Interest to make and receive communication - Public interest - Rebuttal of inference of malice - Onus of proof - Audit of golf club - Inference to be drawn from minutes of meeting - Capacity of unincorporated association to publish libel - Whether interest in making and receiving communication - Whether publication was an occasion of qualified privilege - Whether malice proven - Whether honest belief in truth - Whether words published recklessly without caring whether true or false - Whether publication of words to third party - Whether words used capable of bearing defamatory meaning - Whether words would reasonably be understood by hypothetical reasonable member of class of persons interested in playing golf to mean cheated - Whether conspiracy to injure plaintiff - Lewis v Daily Telegraph Limited [1964] AC 234; Griffin v Sunday Newspapers Limited [2011] IEHC 331, [2012] 1 ILRM 260; McGrath v Independent Newspapers (Ireland) Limited [2004] 2 IR 425; Capital and Counties Bank v Henty [1882] 7 AC 741; Boston v Bagshaw [1966] 1 WLR 1126; Henwood v Harrison [1872] LR7 CP 606l; Wright v Woodgate [1835] 2 CMR 573; Harris v Arnott (No 2) [1890] 26 LR Ir 75; Horrocks v Lowe [1975] AC 135 and Mercantile Marine Service Association v Toms [1916] 2 KB 243 considered - Claim dismissed (2006/950P - Herbert J - 27/7/2012) [2012] IEHC 372

Talbot v Hermitage Golf Club

Facts: The plaintiff was a longstanding member of the first defendant. The first defendant, an unincorporated association, had a number of sub-committees including a handicap sub-committee. The plaintiff had submitted a large number of score cards between the summers of 2002 to 2003, which had in turn had prompted a number of adjustments to his handicap.

This led to a dispute which culminated in the plaintiff receiving a sealed certificate detailing the handicap allocated to him endorsed with the phrase "General Play (Handicap Building)" ("the phrase"). The plaintiff submitted the use of the phrase was defamatory of him and imputed he was a cheat. This was denied by the defendants.

Held by Herbert J, that the Court was satisfied the phrase "handicap building" could be capable of being defamatory and this would be accepted for the purpose of the instant case. However, the fact the phrase could be defamatory did not mean automatically the plaintiff had been defamed. On the assumption the phrase had been published or communicated to the IT company who installed the first defendant's handicap software, the issue was whether the publication was protected by qualified privilege. The Court accepted this was the case because of the genuine and reasonable interest in making the communication. As such, the plaintiff had to prove malice or an improper motive for making the communication before the privilege could be challenged.

The plaintiff alleged the third defendant was motivated by malice or a similar motive against the plaintiff, and this led to the third defendant forming a "conspiracy" of sorts. However, having considered the evidence in the matter, the Court was satisfied the plaintiff had failed to prove malice on the part of the third defendant, or indeed recklessness in publishing the phrase. The Court was also satisfied a number of related letters were not defamatory, or were protected by qualified privilege. The plaintiff had further failed to prove conspiracy on the part of the defendants, and the claim would be dismissed fully.

Mr. Justice Herbert

1 The plaintiff was, up to his retirement, an insurance official. He became a member of The Hermitage Golf Club, (the Club) on the 11^th February, 1962. During the course of his long membership of the Club, he has been its honorary secretary, 1981 - 1982 and, has served on its handicap sub-committee, 1979 - 1980. The Club is an unincorporated association. Rule 11 of its rules provides that the Club shall consist of its several categories of members. Rule 9 provides for the appointment of sub-committees of the executive committee of the Club: in particular the handicap sub-committee. Of importance in the instant case is rule 9.5 which requires that minutes be kept in proper books of all resolutions and proceedings of sub-committees which, when signed by the chairperson, shall be conclusive evidence without further proof of the facts stated therein. For the years ending December 2002, and December 2003, the third defendant was chairman of the handicap sub-committee of the Club.

2 On the 8^th December, 2011, during the course of this action, a handicap record sheet for the plaintiff was printed by a member of the handicap sub-committee using the Genesys Convenor computerised handicap record system. This printout covers the period from the 22^nd June, 2001, to the 29^th December, 2010. It shows that on the 18^th March, 2001, the plaintiff had a playing handicap of 15. Between the 6^th April, 2002, and the 30^th November, 2002, inclusive the plaintiff submitted a total of 22 score cards to the handicap sub-committee. On the 30^th November, 2002, his playing handicap had been adjusted to 13. Between the 30^th April, 2003 and 4^th October, 2003, the plaintiff submitted a total of 55 score cards to the handicap sub-committee. On the 4^th October, 2003, his adjusted playing handicap was 13. During the period from the 30^th June, 2002 to the 28^th August, 2003 inclusive, the plaintiff's playing handicap was adjusted 9 times by the handicap sub-committee as follows:-

3 30^th June, 2002 - 16, 30^th September, 2002 - 17, 7^th October, 2002 - 16, 24^th October, 2002 - 15, 30^th November, 2002, - 13, 30^th April, 2003 - 14, 9^th July, 2003 - 13, 30^th July, 2003 - 13 and 28^th August, 2003 - 13.

4 I find on the evidence that the return of this number of score cards by the plaintiff and the making of this number of adjustments in his playing handicap by the handicap sub-committee were both quite out of the ordinary.

5 By a letter dated the 24^th October, 2003, to the then honorary secretary of the Club written, I infer, in compliance with the provisions of rule 23 of the Club rules which provide that all complaints be made in writing to the honorary secretary of the Club, the plaintiff expressed dissatisfaction with these many adjustments to his playing handicap. Following the further reduction of his handicap on the 30^th November, 2002, the plaintiff complained by telephone and by a letter dated the 27^th March, 2003, to each individual member of the handicap sub-committee at his residence and at his place of employment. Grave exception was taken to the language of this letter and to the nature of these contacts. The executive committee of the Club, by letter dated the 11^th April, 2003, demanded a withdrawal of this letter and a written apology to the members of the handicap sub-committee. This was done by letter dated the 23^rd April, 2003.

6 The plaintiff continued to challenge the cuts to his playing handicap. Letters in this regard dated the 10^th May, 2003, 20^th May, 2003, 26^th May, 2003, 3^rd June, 2003, 25^th June, 2003, 5^th July, 2003, 15^th July, 2003, 17^th July, 2003, 22^nd July, 2003, 23^rd July, 2003, and 27^th July, 2003, were exchanged between the plaintiff and Mr. Paddy McDermott the then honorary secretary of the Club.

7 A minute of a meeting of the handicap sub-committee held on the 30^th July, 2003, was proved in evidence. At Item 1, under the heading, "Matters Discussed" the following is noted, -

8 2 "1. Thirteen further cards received from Tom Talbot - clearly for handicap building purposes. It was agreed that these would be placed through his handicap details and then cut back to thirteen. This was done and a note left for him to play off thirteen. A printout of his handicap details was also made available for Mr. Talbot."

9 The third defendant gave evidence that he believed that this minute was typed by Mr. Dick Clery who was a member of the handicap sub-committee at that time. This membership is borne out by the other minutes of the sub-committee. The minute of the meeting held on the 30^th July, 2003, records that Mr. Clery was not present at that meeting and sent his apologies for his inability to be present. The fact that Mr. Clery was not at the meeting does not mean that the recollection of the third defendant that Mr. Clery typed the minute stands discredited. It does mean that if he prepared the typed minute he must have worked from a note taken by some other member of the...