Ward v The Donegal Times Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] IEHC 711
• Date: 08 November 2016
• Court: High Court
• Docket Number: [2014 No. 4612 P] [2014 No. 4610 P]

BETWEEN:

DANIEL WARD

AND

SEAN QUINN

PLAINTIFFS

AND

THE DONEGAL TIMES LIMITED

AND

LIAM HYLAND

DEFENDANTS

[2016] IEHC 711

McDermott J.

[2014 No. 4612 P]

[2014 No. 4610 P]

THE HIGH COURT

Defamation – The Defamation Act 2009 – Offers to make amends – manner of extending apology – Mitigation factor

Facts: The plaintiffs claimed damages for defamation in relation to two articles written by the second named defendant and published by the first named defendant. The plaintiffs contended that the said articles brought ill-repute to them and exposed them to public contempt scandal and thus, caused them distress. The defendants alleged that reduction in damages should be allowed keeping in mind the offers to make amends made by them.

Mr. Justice McDermott granted general damages to the plaintiffs subject to 20% reduction in consideration of offers to make amends made by the defendants. The Court found that the manner of rendering the late apology by the defendants in relation to the published articles and the conduct of publishing further articles after making offers to amend qualified for reduced level of mitigation. The Court took into account the loss of reputation and goodwill caused to the defendants as well as distress, hurt and humiliation caused to them and their family members by the said publications.

JUDGMENT of Mr. Justice McDermott delivered on the 8th day of November, 2016

1 The plaintiffs claim damages for defamation in respect of two articles published by the first named defendant and written by the second named defendant, in his capacity as editor and journalist for the first named defendant, on 25th September and 9th October, 2013.

2 The first named plaintiff, Mr. Daniel Ward, was and is financial controller of Donegal Town Enterprise Scheme Limited which runs and operates an inshore leisure boat, known as the Donegal Bay Waterbus. The second named plaintiff, Mr. Sean Quinn, was and is the CEO of the Donegal Town Enterprise Scheme Limited which operates the Donegal Waterbus.

3 The first named defendant is a limited liability company with registered offices at The Diamond, Donegal Town, County Donegal and is the publisher of The Donegal Times, a newspaper circulating mostly in County Donegal. The second named defendant is a Director and/or Shareholder and/or Manager of the second named defendant for which he works as journalist and editor.

4 Plenary summons' in respect of both actions issued on 21st May, 2014 and each defendant entered an appearance on 28th May, 2014. The statements of claim were delivered on 16th June, 2014. An offer to make amends pursuant to section 22 of the Defamation Act 2009 (‘the 2009 Act’) was made by the defendants in respect of each plaintiff on 11th December, 2014. This offer was accepted by the plaintiffs by letters dated 10th February, 2015.

5 In the absence of agreement between the parties as to the terms and conditions of the offer of amends, the matter came on for trial before this Court on 26th and 27th May, 2016 to assess damages and costs pursuant to section 23 (1) of the 2009 Act. When the matter came on for trial, the Court was informed that a further related action in these proceedings, brought by Donegal Town Enterprises Limited had been resolved. Proceedings were adjourned until 16th June when the matter recommenced. Oral evidence was given and written and oral submissions were received by the Court.

The impugned articles

6 The first article, the subject of these proceedings was published on page 25 of the 25th September, 2013 edition of the Donegal Times in the section entitled ‘An Editor's Diary by Liam Hyland’. The text of this article is as follows:

‘ Friday 13th: A new company has been formed, Donegal National Hostel Limited. Its registered address is c/o Sean Quinn, Killymard, Donegal Town and its named directors are David Kearney, Co. Dublin and William Curran, Co. Dublin; who are also directors of 5,123 other Irish companies, 1,185 of which are now closed. With a purpose to renovate the National Hotel, the newly formed company intends to re-open it as an accommodation establishment. It's been a great year on the water. Well done to them. Roll on the Annual General Meeting, and a set of figures that members can take home with them.’

7 The second impugned article was published on page 25 of the 9th October, 2013 edition of the Donegal Times again in the section entitled ‘An Editor's Diary by Liam Hyland’. The text of this article is as follows:

‘ Saturday 28th: Well done to the Waterbus boys who are winding down after a very successful year. In the months April to end of September, the vessel carried over 40,000 passengers – at €15 a go – you can work out the math. Then the bar takings. Being easily the most successful voluntary enterprise in town, this Community Scheme, already debt free, should be ready to deliver a fair amount of dosh to local groups, worthy charities, and organisations like Town Chamber and Bosco. With the committee and crew working for nothing, almost all turnover should translate into profit. Maith a gasurí.’

8 The plaintiffs claim that the words published in these articles were defamatory of and concerning the plaintiffs. The first named plaintiff, Mr. Ward's, statement of claim states that the articles and, in particular, the words set out therein, in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that:

a. The plaintiff participated in financial malpractice and mismanagement of monies associated with the Donegal Waterbus;

b. The plaintiff was willing to act as financial controller of an enterprise that was engaging in financial malpractice;

c. The plaintiff acted improperly, unethically and/or corruptly.

The first named plaintiff states that the publication of the words complained of has gravely injured his reputation in his personal and professional capacity and has exposed him to public scandal and contempt and caused him great embarrassment and distress in his job as financial controller that requires the utmost integrity and propriety. I am satisfied on the evidence that this is so.

10 The second named plaintiff, Mr. Quinn, claims that the words set out in the articles in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that:

a. The plaintiff did not carry out his function of CEO with due care, diligence and the utmost good faith;

b. The plaintiff was party to financial malpractice and mismanagement of monies associated with the Donegal Waterbus;

c. The plaintiff was willing to act as CEO of an enterprise that was itself engaging in financial malpractice;

d. The plaintiff acted improperly, unethically and/or corruptly in his position as CEO.

He claims that the publication of the articles injured his reputation in both his professional and personal capacity and has exposed him to public contempt and distrust and caused him grave embarrassment and distress. I am satisfied that this is so.

11 The plaintiff's claim includes a claim for aggravated and/or exemplary damages.

Sequence of events

12 Letters were sent on behalf of Mr. Ward and Mr. Quinn by McCanny & Co. solicitors to the Donegal Times and Mr. Hyland respectively on 4th December, 2013 complaining about the articles. They set out in detail the alleged defamatory nature and effect of the articles.

Mr. Ward's letter

13 The letter sent on behalf of Mr. Ward to the Donegal Times refers to both articles published by the Donegal Times on 25th September and 9th October, 2013. It states:

‘Those articles clearly show the continuous malevolent and malicious publication regarding the Donegal Waterbus and have been motivated by personal vindictiveness and ongoing malice which has continued through numerous articles published by you down the years since February 2009’.

14 It notes that Mr. Ward prepares and calculates the figures for the purpose of preparing the company accounts of Donegal Town Enterprises Limited to be presented by the board of the company to the AGM. It states:-

‘This article is an attempt to slur by innuendo Mr. Ward's personal and professional reputation and the reference to the accounts in this article is clearly libellous of our client.’

15 In relation to the article published on 9th October, 2013, it is claimed that the reader was invited to multiply the figure of 40,000 passengers by €15 to conclude that the turnover of the waterbus business was €600,000. The letter states:

‘You and your paper are well aware that when you say “you can work out the math” that this is factually incorrect as there are substantial discounts given to various types of groups of passengers… The purpose of these articles is to give an exaggerated picture of, in the first instance, the turnover of the business and then, in the second instance, to indicate there is a limited overhead by virtue of “with the committee working for nothing – almost all turnover should translate into profit”. Since you are fully aware that the full adult fare is €15, you cannot but be aware of the “family friendly discounts” being advertised several hundred times every year as the van with the PA system advertising this passes your open office window many times every day. Furthermore by your family connection and social connection with past officers of the company, you would be fully aware of the custom and practice to discount coach group tours. Finally, on this point, you would most definitely know that Mr James White, who is bringing 10,000 plus passengers to the waterbus annually since March 2012, is paying substantially less than the full ticket price due to such volume. In any event, DTES Ltd accounts are freely available on the CRO website and you could have accessed this information, as you have previously done and obtained the real level of turnover...