SUPREME COURT

BETWEEN/

1 This case has been in existence for almost eighteen years and has been the subject of a detailed judgment in the Court of Appeal and two judgments in this Court. I do not propose to repeat the facts which have already been comprehensively considered in a number of judgments in this case. The Court has already set aside the order of the Court of Appeal in this matter. (Charleton J. McKechnie J. concurring). I concurred in the outcome, but in part because it was apparent that there was a potential disagreement as to the matters debated in this application, I did not concur in either judgment. It is now necessary to address those ancillary matters. I will refer briefly to those facts which are relevant to the intricate and rather complex issues which have arisen.

2 On the 5th September, 1999, almost eighteen years ago, the Sunday World, a newspaper with one of the largest circulations in Ireland, published a front page article with further detail on pages 2 and 3 about the plaintiff. It is beyond dispute that the thrust of this article was to allege that the plaintiff was a drug dealer, a loan shark, a tax evader, and a criminal. The article did not mention him by name but rather by an ascribed nickname. It was accompanied by a poorly pixelated photograph of the plaintiff who was recognisable. It was accepted that the article referred to, and was intended to refer to, the plaintiff.

3 More than eight years later, on the 28th February, 2008, and after a trial lasting five days, a jury found that the defendant had indeed proved that the plaintiff was indeed a tax evader and a criminal (albeit that these matters were effectively conceded on his behalf) but had failed to prove that he was either a drug dealer or a loan shark.

4 The defendant had also raised a defence under s.22 of the Defamation Act 1961. That provides, in essence, that where a jury concludes that some of the matters alleged are true and others not, it must proceed to consider if the reputation of the plaintiff has been damaged by the matters alleged which have not been found to be true, having regard to the truth of the other allegations. This has been aptly described as a liability defence, in that if successful, it means that the claim will be dismissed notwithstanding the fact that the plaintiff had succeeded on some aspects of the defamation.

5 The format of the issue paper has been analysed and debated at some length in these proceedings. The jury were invited to address the following questions in numerical sequence:

“1. Has the Defendant proved:

(a) that the Plaintiff was a drug dealer.

Answer

(b) that the Plaintiff was a loan shark.

Answer

(c) that the Plaintiff was a tax evader.

Answer

(d) that the Plaintiff was a criminal.


If the answer to all parts of Question 1 is yes, proceed no further.

2. If the answers to one or more parts of Question 1 is no, but the answers to (1) or more parts of Question (1) is yes, do the words not proved to be true materially injure the Plaintiff’s reputation having regard to the truth of the remaining charges?

If the answer to (2) is no, proceed no further.

3. If the answer to 2 is yes, assess damages.”

7 This was a very substantial success for the plaintiff. At the time the award represented the highest award which had ever been made by a jury. It seems probable that the jury responded to the skilful manner in which the plaintiff’s case was presented, which frankly admitted, but did not dwell upon, the plaintiff’s own poor reputation but rather tended to focus on the conduct of a member or members of the Gardaí, who it appeared, must have provided information to the newspaper at a time the plaintiff was in custody, and the newspaper’s treatment of it.

8 As might have been expected, the defendant appealed. The appeal, which at the time it was initiated, lay to the Supreme Court but was transferred to the Court of Appeal consequent on the coming into force of the 33rd amendment to the Constitution, challenged the findings of the jury in respect of the findings of drug dealing and loan sharking, raised the absence of an explicit answer to question 2 which it was said vitiated the award in any event, and finally, also appealed the award as being excessive, even on the assumption that the plaintiff was entitled to succeed.

9 The outcome of the Court of Appeal hearing was in turn a substantial victory for the defendant newspaper. Briefly, the court decided that the verdict of the jury in respect of drug dealing was perverse and must be reversed. The verdict in respect of loan sharking should be set aside but a retrial ordered in that respect. Furthermore, it was considered that the trial was in any event unsatisfactory and a retrial would be required because of the absence of an express answer to issue 2. The court did not address the damages issue, since that did not arise given the findings which it had made on the liability issues. It would in truth perhaps have been difficult for the court to have addressed the question of the quantum of damages which would have necessitated the court assuming something (that the plaintiff had been libelled) which the court had reversed, and in one respect decided the case in favour of the newspaper, and in another directed a retrial.

10 If the decision of the Court of Appeal had been final (as would have been the case had the case proceeded in the Supreme Court) then, the disposition of the case would have been relatively clear. That was a retrial on the loan shark issue alone. There would not have been a full retrial. However, decisions made by the Court of Appeal may be the subject of an application for leave to appeal to this court which may grant such leave if it is established that the appeal involves a point of law of general public importance and/or that it is in the interests of justice that an appeal be brought to the Supreme Court. The manner in which this matter has proceeded has perhaps lessons for the resolution of appeals both in the Court of Appeal and in this Court.

11 In its application for leave, the plaintiff sought to appeal and reverse the decision of the Court of Appeal in respect of drug dealing and loan sharking, and also sought to appeal the finding in relation to the question 2 issue. The grounds of appeal were formulated in a number of different ways raising different issues, but essentially, this Court granted leave on what might be described as the substantive libel issues, that is the drug dealing and loan shark issues but refused leave to appeal on the question 2 issue. On its face, this appears unremarkable. An appeal to the Supreme Court is not to be treated as simply a further round in a dispute between the parties. The issue for this Court is not whether it would have arrived at the same decision as the Court of Appeal. Rather, the jurisdiction of this Court is directed towards the determination of points of law of general importance, which normally have a potential impact well beyond the facts of the individual case. In those circumstances, it is unsurprising that the question 2 issue did not pass the threshold of raising any point of law of general importance. In essence, it raised a question of the interpretation of the jury’s answer to the issue paper which, on its face raises no issue of law, and in any event arose in circumstances unlikely to be replicated in future cases. It is also the case that the information available to this Court on a standard application for leave is necessarily limited, and is focused on the question of whether a point of law of general public importance has been identified. During the hearing of this case, and necessarily after the determination of the Supreme Court of the issues certified, the issue of question 2, and also the question of damages in respect of which the defendant has not cross-appealed, have however taken on a greater significance. I think it is fair to say that nobody seriously doubts that if possible, it would be desirable that this Court should be able to deal with these issues in the interests of clarity and finality, but an important question arises as to whether it has jurisdiction to do so.

12 That question arises because the outcome of the appeal on the certified issues was that this Court unanimously reversed the decision of the Court of Appeal in respect of the drug dealing and loan shark issues. That had the effect of setting aside the Court of Appeal’s order in that regard and therefore reinstating the jury verdict in the plaintiff’s favour on both these matters. However, it did not resolve all issues. Indeed, if the proceedings in this Court were to end at that point, the future proceedings in the case would be both complicated and unsatisfactory. The defendant maintains that the portion of the Court of Appeal judgment dealing with question 2 remains intact, and that there must be a full retrial on all issues, even though the Court of Appeal did not itself make such an order in respect of the question 2 issue: the outcome of the Court of Appeal was a limited retrial on the loan shark issue. Another possibility which was raised was that before there could be any retrial, it would be necessary to complete the consideration in the Court of Appeal by allowing the Court of Appeal to determine the damages issue. That task would pose considerable difficulty given the fact that that court had already decided that the evidence showed that the plaintiff was indeed a drug dealer, and that the jury’s finding upon which it awarded the damages was perverse. This difficulty is further compounded by the fact, as will become apparent, that a majority of this Court considers that the completion of the issue paper by the jury is not defective, or at least, not so defective as to warrant a full retrial, which it is contended the terms of the Court of Appeal judgment, but not its order, now requires. If that were to ensue, it would combine a randomness with the law of unintended outcomes which could have no appeal to anyone other than the devoted collector of examples of the fickleness of the law.

13 Somewhere in Dante’s Inferno there are souls condemned to engage in perpetual litigation as punishment for some unspeakable sin while on earth. But it is not something which should be sought by the living, or tolerated by the courts. Litigation is anything but a costless activity in terms of time, effort, stress, attention diverted from other more productive matters, and not least money. As this case vividly illustrates, proceedings are not heard in the immediate aftermath of an event and appeals are not heard a matter of days or weeks after the trial complained of, and retrials are neither free, nor as simple as re-running a laboratory experiment. As Fennelly J. said in a different context: “The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the object of expedition and economy” (Ryanair v. Aer Rianta [2003] 4 I.R. 264 at p. 277). There is, or ought to be, a difference between a courtroom and a casino where there is always one more bet that might restore the gambler’s fortunes. The interests of justice require a fair hearing according to established procedures and careful review, but there is also a strong incentive towards bringing finality to litigation particularly a case like this which has gone on for such a length of time, so long as that object can be achieved without breaching some fundamental rule.

14 In well constructed and forceful submissions, counsel for the newspaper argues, however, that it is simply not permissible to revisit the question of the grant of leave however convenient that might be. It is argued that the decision to refuse leave in relation to the question 2 issue is a decision which is final and binding between the parties, and unappealable, and indeed a decision of the Supreme Court to which the provisions of Article 34.4.6º of the Constitution apply. I do not agree. There are a number of circumstances upon which a court may revisit an earlier decision from the exceptional jurisdiction contemplated in Re Greendale Developments [2000] 2 I.R. 514, to the more mundane questions of applications to vary a final judgment before a final order is made, (See Belville Holdings Ltd. v. Revenue Commissioners & anor [1994] 1 I.L.R.M. 29) or applications made under the slip rule to the procedure of speaking to the minutes of the order which produced the substantial ruling in Murphy v. AG [1982] I.R. 241. See more generally the recent decision of this Court in Nash v. DPP [2017] I.E.S.C. 51. The decision on the grant of leave is not itself a final decision in a case. If leave is granted on the basis that it involves a point of law of general public importance, the appeal is extant, and the court has hitherto considered that it is entitled to revise the terms of leave to ensure that the appeal is properly and fairly disposed of. Perhaps one analogy is if a limited order for discovery had been made in High Court proceedings which included the refusing of one category of discovery. If later during the case it became apparent that such discovery was necessary for the fair disposal of the case, I do not think the High Court judge would be powerless, and that the only remedy the parties might have would be to appeal that discrete issue to the Court of Appeal, which by definition would not have the knowledge or familiarity with the issue of the High Court. Of course, a court, particularly a court of final appeal, will be slow to depart from any interlocutory ruling or order made in a case, and in the case of a trial court a change of mind runs the risk of making an appeal inevitable, since by definition both parties will now have had a decision in their favour on the same issue. Nevertheless, if that is what a court considers justice requires, and if it addresses the matter fairly, and gives both sides an opportunity to make submissions, it seems to me that it would be the doing of justice rather than its defeat to maintain the capacity to revisit the question of the scope of the grant of leave while an appeal is still in being and has not been concluded, so long as that is done fairly. Different considerations may apply to a decision to refuse leave on all grounds and which therefore brings proceedings to an end.

15 This case provides a very good example. The amount of information which is available on an application for leave is of necessity less than will become available in the course of an appeal if leave is granted. The focus of any application is on the questions of issues of law which in the normal course should be readily apparent from the judgments of the court below and the submissions made by the relevant parties. It was clear from that material, that the question 2 issue was not itself a point of general public importance. However, it is apparent now that it is in the nature of a linchpin to the case since unless it can be addressed, it will not be possible to resolve the appeal. It is important to recall that the purpose of any appeal is not in itself just to decide points of law: it is to decide cases. The reasons why a party appeals is to seek an order different from that made by the court below, not merely a different determination as to law, however interesting that might be. It may therefore be in the interests of justice to argue and determine points, themselves of little general importance, which may nevertheless be decisive to the form of the order and the outcome of the case which itself raises an important but not necessarily decisive issue of law of general public importance. I consider that the Court is entitled to review the question of the scope of the issues which can be argued on this appeal, leave having been granted and the case not having been determined. Accordingly, I turn to the question of the plaintiff’s contention that the question 2 point was wrongly decided by the Court of Appeal.

16 The Question 2 Issue
I appreciate the argument that no express “yes” was inserted by the jury in answer to question 2 vitiates the entire verdict of the jury. The argument is set out powerfully in both the judgments of Hogan J. in the Court of Appeal and McKechnie J. in this Court. However, I think it is necessary to look more closely at both the issue paper and what the jury did in this case.

17 First, it is plain that the jury assessed damages indeed in the sum of €900,000. On the plain terms of the issue paper the jury can only do so “if the answer to 2 is yes”. Moreover, when the issue paper is considered more closely, it is entirely possible that the jury were being scrupulous rather than careless in following what appeared to be the instructions of the issue paper. The issue paper was structured in a format in which it instructed the jury to do a number of things in sequence, and in certain circumstances to refrain from going further. Thus, after question 1 it is stated that if the answers to all subheads of question 1 were yes, then the jury should “proceed no further”. In the event, the jury did not answer all such questions yes. Therefore, it was obliged to proceed further in this case to the second issue. That matter, although framed with a question mark, did not provide a space or include the word “answer” as questions 1(a) to 1(d) did. Instead, once again the jury was informed, indeed instructed, that if the answer to question 2 was “no” then the jury should “proceed no further”. Plainly the jury did proceed further which suggests strongly that they addressed the issue contained in question 2 and did not answer it with a “no”. Question 3 is not so much a question as an instruction. It provides that if the answer to 2 is yes, assess damages. (It is perhaps noteworthy that neither here nor in the preceding sentence is “2” referred to as a “question”, whereas in issue 2 question 1 is so described). In any event, the jury plainly did assess damages. Again, this strongly suggests that the jury considered that the plaintiff’s reputation had indeed been injured materially and that therefore damages should be assessed.

18 When the issue paper is looked at through the bright glare of hindsight, and where it is the sole issue of scrutiny, it is apparent that it could have been formulated with more precision. Certainly, if it is the case that an explicit answer was required to issue 2, then it is unfortunate that the word “Answer” was not set out with a space beside it, in the same way as had been provided for in question 1. Moreover, I think the separation of issues 2 and 3 was artificial. In truth, the third “question” was one of two alternative steps which should be taken (or not taken) depending on the view the jury took under s. 22. Thus, the issue paper can, I think, be understood as asking if the words found untrue had materially damaged the plaintiff’s reputation having regard to those matters found to be true, and if the answer was no, they should proceed no further, and if yes, they should assess damages. If understood in this way and the jury had proceeded to assess damages, no one would, I think, argue that there was any doubt whatsoever as to what the jury had done. On this reading it is the inclusion of the numeral “3” and perhaps the consequent implication that steps 2 and 3 are separate which creates any possible confusion.

19 Finally, it is I think also relevant to look at the immediate reaction of the relevant parties to the completion of the issue paper in this way. Counsel for the newspaper enquired if the jury had answered question 2. The judge’s immediate response was that it had not been necessary to do so. The fundamental issue here is whether the manner in which the issue paper was completed means that the jury has somehow failed to perform its function in this case, and if there is such uncertainty, that it is necessary to direct a retrial. In that regard, it is I think relevant that the one neutral person in the room, with a particular interest in both the issues committed to the jury and the jury’s response, was in no doubt as to what the jury had done, and indeed clearly considered that the format in which the jury had expressed its decision was one permitted by the issue paper.

20 On the other hand, it is also worth considering what other plausible contrary interpretations can be advanced. In my view, the defendant is reduced to contending that it is possible the jury deliberately ignored the substance of question 2 and proceeded to assess damages without considering the question of s. 22 of the Defamation Act, 1961 at all even though this was something which had not simply been introduced for the first time by the issue paper, but was something on which the jury had been instructed by the judge, and on which they had been addressed by the parties. Another possibility is that the jury simply did not understand question 2 and collectively either decided not to engage with it or simply did not do so and skipped to the assessment of damages. However, both these hypothesis are merely speculative, and involve moreover an assumption that a collective body in which each juror had an individual obligation to ensure that a true and fair verdict was returned, either ignored their duty or at least were so confused that they did not do it, or take the elementary step of seeking clarification from the trial judge as they were entitled to do. I see no reason to adopt such an interpretation. Indeed, it would be inconsistent with the high value ascribed to the decision of a jury in defamation matters and to the collective intelligence it embodies if appellate courts were willing to set aside jury verdicts and direct retrials on speculations such as this. It would be quite different if the jury had written an answer “no” to question 2 but then proceeded to award damages. That would be self-contradictory and create genuine ambiguity as a result of which the verdict cannot stand. Here however, I think it is quite clear that the jury did not consider that s. 22 afforded the defendant a defence in this appeal, something which was entirely logical in the circumstances. The sting of this libel had always been the dramatic contention that the plaintiff in this case was not just a drug dealer, but a “new drug king” and a “top drug dealer”. It would be hardly surprising if a jury considered that to make such an allegation in the most prominent possible way in a large circulation newspaper was of a different order to asserting that someone had evaded tax. I appreciate the argument that there is a possible inconsistency between the decision of the Court on this matter that the jury behaved rationally and reasonably in this regard and the conclusion that the damages award was excessive which necessitated a finding that on damages it had come to a conclusion outside the range that any reasonable jury could award. But that possible inconsistency is more rhetorical than real. Courts regularly overturn awards of damages by judges and juries without considering that the decision on liability is necessarily undermined. No one suggests that even if the plaintiff had been of unblemished character, that the award here was appropriate. Accordingly there is in my view no necessary linkage between the issue in respect of question 2 and the award of €900,000 damages. Accordingly, I would reverse the finding of the Court of Appeal on this issue.

21 Damages
Counsel for the defendant has submitted that if the plaintiff is to be permitted to argue that the Court of Appeal was wrong on the question 2 issue, and if the Court was to accept the plaintiff’s argument in that regard, then counsel would wish to argue the question of damages. This point had been argued in the Court of Appeal but not decided. The jurisprudence of this Court establishes that if a point has been fully argued in the court below, even if not decided because on the view taken by the trial court it was not necessary to do so, then an appellate court may consider the issue if it is necessary to resolve the entire appeal (See: AA v. Medical Council [2003] 4 I.R. 302). I consider particularly in the context of this case, and the manner in which the issue arises, it is only fair to permit the defendant to address this point. Furthermore, this would also facilitate the possible resolution of the entire case in a single adjudication, or at least reduce the areas for uncertainty. There are accordingly two remaining issues. Is the award of €900,000 excessive? If so, should this Court substitute its own figure or must it remit the matter to the High Court for a new trial which, as a matter of practicality and possibly logic, could necessitate a full rehearing not just on the damages issue, but on the issues of liability?

22 First, the award of €900,000 must be seen against the background of the fact that the jury found, as this Court has held it is entitled to do, that the publication meant that the plaintiff was a major drug dealer and a loan shark, and that the defendant had not established that these assertions were true. It is not unfair to observe that not least for reasons that led the Court of Appeal to reverse the finding on drug dealing and to set aside the finding on loan shark, that this was perhaps not a result that would have been predicted or anticipated since there was much evidence adduced which was damaging to the plaintiff. Nevertheless, once the jury decision was one based on evidence which could support it, it must be taken to be the starting point for the assessment for damages.

23 There is no doubt that to say falsely about someone that they are a major drug dealer and a loan shark is seriously defamatory and damaging to their reputation. When this is done in the most prominent pages of the largest circulating newspaper in the State, it gives it considerable currency. When the proceedings are defended on a plea of justification which fails, the damaging allegation will have been given much more circulation by the coverage given to the trial, and by the inevitable willingness to believe that there is no smoke without fire. For reasons which I will address in a little more detail later, I also accept that the comparison of awards with awards in personal injuries cases, and even in other defamation cases, is difficult and provides only limited assistance. Nevertheless, I have come to the conclusion that the award of €900,000 must be set aside as exceeding the range of awards which any reasonable jury could award.

24 First, the plaintiff was not identified by name. Second, he was not well known to the public generally before the publication. On the evidence of the matters which were admitted on his behalf, tax evasion, criminality, and settlement with the Criminal Assets Bureau, and indeed the evidence given of his associations and reputation in connection with the plea of justification, he was a person who could not claim to have an unblemished or good reputation. In truth, he had, and deserved, a poor reputation. Finally, the award was on any view a very large sum of money which would have meant that the plaintiff could live very comfortably for the rest of his life. Given the fact that tax is not chargeable on the award, it is worth considering how long and how hard an individual would have to work to amass such a sum, and in turn what €900,000 in 2008 or its equivalent in today’s money could purchase. I agree with all my colleagues that the award was excessive and must be set aside

25 The defendant newspaper argues, however, that once this Court has concluded that the award is excessive, it must simply remit the matter for a further trial. Even if such a further trial could be limited to the assessment of damages, that is a very unattractive prospect since it would necessarily involve almost the same evidence which was adduced at the first trial, now directed to the question of reputation albeit that the jury would not be able to come to its own conclusion on the question of defamation. However, counsel for the newspaper goes further and argues that even if the only defect in the High Court decision that was sustained in the award of the jury, was the quantum of damages, there would nevertheless have to be a full retrial of all issues, since it would not be feasible to disentangle the question of truth from reputation more generally. I am inclined to agree that if a retrial is required, even on the question of damages, that this would indeed be the case. But if so, this has the further consequence that the plaintiff would be deprived of the decision of the jury in his favour on the question of liability and the decision of this Court upholding the verdict.

26 The fact that the defendant newspaper argues for a remittal for a further jury trial, and against this Court substituting its own award, deserves comment. For very many years now, media defendants, both individual and collective, have complained that the Supreme Court and appellate courts generally have directed retrials in cases rather than substitute their own award. The provisions of s. 13 of the Defamation Act 2009, it was conceded, were introduced in response to these complaints. That section expressly permits the appellate court to substitute its own award in circumstances where it concludes that the award of damages by the jury was excessive. The commencement of these proceedings pre-dated that provision but again, as acknowledged in argument, and indeed as set out in Holohan v. Donohoe [1986] I.R. 45, the better view is that the court has always had jurisdiction and the reason that the jurisdiction was rarely exercised was because of prudential rather than jurisdictional limits.

27 Counsel on behalf of the newspaper argued, however, that the defendant was not willing to have the court substitute its award in the event that it came to the conclusion that the award of the jury exceeded any reasonable amount that a jury could award for the defamation in this case. He explained that it was considered that if the award was too high to begin with, that fact would condition any substituted award. This is a concern for what might be described in psychology as “framing”: once a high figure is introduced even as a starting point, then even a substantial reduction would leave an award which was in some objective sense, considered still to be too high.

28 This argument is of course devoid of principle. The only appeals brought by defendants to an appellate court are from awards which it is contended are not only too high, but so high that no reasonable jury could have awarded them. If awards are appealed by successful plaintiffs, it is on the corresponding argument that they were too low. Thus, in every case in which the court is invited to exercise the powers under s. 13 of the 2009 Act or the jurisdiction identified in Holohan v. Donohoe, the same theoretical framing risk arises. If correct, the appellate court should never exercise a power to substitute its own award. But the risk of framing is something with which lawyers, not just judges, are familiar since it is a feature of almost every negotiation and there are countervailing influences. Counsel seemed to suggest however, that it was only a real concern where the awards were very high. However, this is not persuasive. If indeed the award is so high and so out of kilter that it satisfied the test that it is so unreasonable that no reasonable jury could have made it, it is hard to see why it should be feared that the court which had made that determination would nevertheless allow itself to be subliminally influenced by that award, and would not be astute to avoid any such influence. In any event, the court has a jurisdiction and cannot avoid exercising it if it is required in a case.

29 It seems therefore that the defendant’s opposition to the Court substituting its award in this case is based less on principle and reason, and more on a pragmatic assessment of the defendant’s chances under each route. If the finding of liability is upheld (as has been in this case), then the assessment of damages must take account of and be faithful to that finding. If however there is a retrial, and in particular a retrial at which all issues are open, then there is a risk which neither party can exclude, that the plaintiff may not succeed, or if he succeeds he will not receive large damages. On this calculation it might be thought to be likely, although that can never be known with accuracy, that the outcome of a retrial would be better for the defendant than a substitute award which accepted the finding on liability. The fact that the plaintiff asks the Court to determine the matter and substitute its own award reflects perhaps a similar assessment of the likely range of potential outcomes, as well no doubt as a concern that the imbalance in resources may mean that the plaintiff may find it more difficult than the defendant to face into a second trial and what would be a fourth court hearing. The defendant may therefore calculate that even if the finding on liability on this case was in the permissible range of findings open to a jury, it nevertheless represents something of an outlier and might not be replicated before another jury. That may or may not be correct, and may be a pragmatic reason for the defendant taking the position it is, but I fail to see why it could be a reason for this Court to accede to the course the defendant suggests.

30 However, the rather surprising volte face on the part of the defendant illustrates perhaps the fact that the substitution of an award by this Court (or the Court of Appeal) for the damages assessed by the jury is in reality a more difficult and complex task than some of the public commentary has been willing to appreciate. It has been said, correctly, that the Supreme Court has been very reluctant to exercise this power. Indeed, it was said in Barrett v. Independent Newspapers [1986] I.R. 13 at p.19 that:

“[W]hilst the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy.”

31 A jury’s decision is necessarily opaque. The decision is delivered, and not the reasons for it. It cannot be interrogated for justifications, and may indeed be arrived at by a process of compromise. It has however two particular strengths: first, it represents the considered decision of members of the public randomly selected and assembled solely for the purpose of determining a single case. Second, the fact that a single decision is rendered by a jury consisting in principle of twelve persons means that it has the benefit of the phenomenon identified as collective wisdom: the fact that if an individual decision or assessment is made by a large number of disinterested people, and whether the average or the mean is taken, the process limits the possibility for extreme and idiosyncratic decisions, and leads to a broad consensus which carries greater weight, and indeed, the likelihood of being correct, than the decision of a single individual. These strengths have a particular connection to actions for defamation. The principal test, whether a publication will lower a person in the minds of right-thinking people, calls particularly for determination by members of the community, and preferably by a randomly assembled group of such individuals. The reputation to which an individual is entitled, and whether any publication is defamatory, and the impact of any such defamation on an individual within the community, perhaps particularly when contained in mass circulation in newspapers or media organs with wide popular access, are all matters which members of the public, who after all are the target audience of such publications, are well placed to gauge. Furthermore, the purchasing power of money and the value in real terms to the life and lifestyle of an individual is something which a jury composed of persons drawn from different social groups, and having different life experiences, can collectively gauge and judge. It is sometimes suggested that it is simply impossible for an appellate court to substitute its own award for that of a jury because the award is somehow purely within the province of the jury. But if an appellate court can set aside the award by a jury because it is outside the range of any reasonable award, it must follow that a court can identify the range of permissible awards, and I can see no objection to a court then making its own best assessment within that range.

32 These features do suggest, however, that any jury award in a defamation case should be approached cautiously, and a significantly wide margin should be afforded to such an award in every case. But there is a further difficulty which does not arise in, for example, a personal injury case. There, the question of liability is often quite distinct from the question of the extent of the injury. Damages can often be assessed quite separately and without reference to the circumstances giving rise to the injury. Furthermore, the question of the extent of an injury may be a matter upon which there is disagreement, but it is also normally the subject of expert evidence on either side, thus reducing the task of the fact finder to a consideration of the probabilities on either side. However, in a defamation case the question of whether the words are defamatory, and if so the damage done to the specific reputation of the individual, are bound up together. Here for example the quantum of damages depends not simply on some view as the scale of damages to be awarded in particular types of cases, but on the extent to which the elements of the publications found to be untrue, or at least not established as true, damaged the reputation of the plaintiff. That evidence is influenced by the impression witnesses make to a greater extent than perhaps in other cases. For these reasons and more, I have considerable sympathy with the view expressed by my colleagues in dissent that the Court cannot or should not attempt the task of substituting its award but rather should submit this matter for a further trial.

33 However, the issue for this Court is not simply whether or not it should substitute its own award for that of the jury which it has found to be so unreasonable that it cannot be upheld. If it does not substitute its own award, it must remit the matter for a re-trial. Accordingly, the choice here is between alternatives, neither of which is attractive.

34 As already observed, a re-trial is not like the re-running of a science experiment with one variable element excluded. In such a situation all the elements present in the previous experiment can be introduced in precisely the same way, and none of them have, by definition any memory of the previous experiment. The same cannot be said of litigation. Some witnesses may not be available, others may become available, and those who were present in both cases will not be able to, and in most re-trials will not be permitted to, forget what occurred and was said in the previous trial. The events the subject matter of these proceedings occurred nearly twenty years ago. Inevitably the memories of all the witnesses will be poorer. There are also other problems which have no easy answer. What if anything is a jury to be told about the previous trial? This is a case which has attracted a high degree of publicity and commentary, and reference to a previous trial might well trigger memories of the award in this case, or prompt research on the part of the jury. What is to be said about matters occurring after the first trial? If there are matters which cast serious doubt on the credibility of witnesses, is that to be ignored? On the other hand, if there are matters which reflected very badly on the reputation of the plaintiff (and I emphasise there is no such suggestion in this case) could those matters be deployed? If not, is the jury to be asked to engage in an artificial exercise by reference only to those matters which were available at the first trial and remain available now? Put at its lowest, no one can suggest that a trial of twenty years remove from the events described and the publication complained of is a very satisfactory option. Furthermore, there is no reason to believe that any such trial would be an end of matters. Particularly if a view as strict as that taken by my colleagues in dissent in this case, and the Court of Appeal in this case, of the construction of the issue paper in this case, for example, it is certainly possible that the disappointed party in any retrial would exercise their right of appeal. This is particularly so because by then there would be a very significant investment in costs in the balance.

35 If this was a case in which the appeal was being heard very shortly after a trial, then the difficulties with the substitution of an award might indeed lead me to take the course of directing a re-trial. However, I cannot ignore the amount of time that has elapsed in this case, and I have come to the conclusion that the prospect of a re-trial in this case, with the possibility of further appeals, is a less satisfactory and less just solution, than for this Court to proceed and to seek to determine this litigation once and for all by substituting its own award for the award of the jury which has been set aside. The administration of justice contemplates a decision at trial level and if necessary review at appellate level. I do not see that the prospect of further trial hearings and possible appeals is a fair, better, or more just outcome than if this court assesses damages now.

36 The recent decision of the ECtHR in Independent Newspaper v. Ireland ((App. No. 28199/15), concerning the Leech case (Leech v. Independent Newspaper [2014] I.E.S.C. 79) was referred to in the submissions on this matter. It was observed in passing that the jury direction given in that case was almost identical to that given in this case. However, more attention was focussed on the ECtHR’s acknowledgement that Ireland’s decision, in common with many other countries it should be said, to have jury determination of defamation cases was “an entirely legitimate decision” to involve citizens in the administration of justice, which moreover had been considered and affirmed relatively recently after a careful public debate. The ECtHR considered, however, that in substituting its award for damages the Supreme Court decision did not “disclose relevant and sufficient reasons supporting the conclusion finally reached”. Counsel for the newspaper in this case suggested that in substance this issue arose from the fact that while the libel in that case was not the gravest and most serious by comparison with the libel in De Rossa v. Independent Newspaper [1999] 4 I.R. 432, nevertheless the Supreme Court had substituted an award which was a significant multiple of the amount awarded in that case. If this indeed was the fundamental issue, then I would suggest as part of the respectful and necessary dialogue between courts, and in particular those coming from different legal systems and forms of legal reasoning, that such an analysis is somewhat superficial. A sympathetic reading of the judgment in the Leech case would, I think, reveal fairly clearly the factors which must have underpinned the original award of damages by the jury, and the Supreme Court’s decision to substitute a reduced but nevertheless very substantial award of damages.

37 The libel in the Leech case was one committed after a sustained and almost unprecedented high profile campaign of repeated publications in a newspaper directed against the plaintiff in that case. The underlying allegation that the plaintiff, a married woman, had an adulterous affair with a prominent politician, and moreover that she owed her employment and substantial income to improper favouritism by the same politician was undoubtedly serious. It attacked the individual’s reputation at a most personal and intimate level, and necessarily had significant impact on her personal and family life which lies at the core of a person’s identity, sense of security, and indeed sense of self-worth. But the libel at the same time attacked her professional reputation and source of employment. In this case, her business involved representation of individuals and businesses, and was thus closely connected to and could not be detached from her own reputation. The business which she was in the course of launching could have been expected normally to benefit from the fact that she had been trusted to carry out important public relations functions for a busy Minister. After the libel, however, that relationship became not an advantage, but rather a significant, and probably crippling handicap. It seems reasonable indeed, if not inevitable, that the jury considered that the repeated and persistent defamatory campaign was a serious libel deeply wounding to the plaintiff and her family on a personal level, and extremely damaging to her personal reputation, but also destructive of her prospects of business success in her chosen field. The damages therefore included substantial damages for serious injury to personal representation, and also the loss of her prospects of a profitable business. It is of course very difficult to assess the loss of future profits of a business that has not been able to commence trade and has no track record of business, and it is recognised that in such cases the Court in assessing such damages, must make the best estimate it can. It seems clear that the Supreme Court agreed that these were the components of the damages of award, but considered that the general award should be reduced. It is of course important that any award of damages substituted by this Court or the Court of Appeal should be adequately and clearly reasoned, but it must also be recognised that there is an inherent limit to the amount of explanation which can be provided. I propose to try to set out the considerations which have led me to agree with the award which represents the collective view of the majority of the Court in this case.

38 First, the Irish Constitution imposes upon the State a specific obligation to defend and vindicate the good name of the citizen. This recognises something long valued in Irish society. The surviving evidence of the comprehensive system of early Irish Brehon law appears to have contained very detailed provisions directed towards the protection of reputation from unjust attack. Thus, the separate provisions were made for the wrongs of mocking a person’s appearance, applying a derisive nickname that sticks, composing a satire and circulating it, taunting of an individual, wrongful accusations of theft, and the circulation in public of stories causing shame to an individual or mocking the disabilities of a person with epilepsy, leprosy, or other afflictions, were all considered matters requiring payment of an honour price to the victim.

39 The protection of reputation from wrongful attack is not a merely historical idiosyncrasy of this country, rather it is something which most civilised systems of justice seeks to achieve. It has been said of the European Convention of Human Rights, but might also be said of any developed system protective of the individual, that the Convention was intended to ensure the development without outside interference of the personality of each individual in his or her relations with other human beings. A central part of the development of that human personality is a reputation earned over a lifetime, perhaps locally among a community, and also in a person’s chosen occupation. To become the subject of an unjust attack on reputation, which is widely circulated, perhaps nationally, can be seriously wounding and cause real damage to a person’s sense of themselves and their self-worth. The awareness that many others are now talking about them, and think less of them, can be crippling to persons of normal sensitivity, not accustomed to life in the glare of national publicity.

40 The statement made and alleged to be defamatory is an expression of speech itself in principle protected by the Constitution. However, when a court comes to assess damages for defamation, it does so only after it has been determined that the statement is both defamatory and wrongful, and that none of the defences protective of a wide range of free speech apply. Therefore, if it has been determined that the words are not true in substance in themselves, or sufficiently true under s. 22 of the 1961 Act, or uttered on the occasion of qualified privilege, or constitute comment on matters of public interest, or are made in circumstances giving rise to the so called “Reynolds” defence.

41 The assessment of damages is made only after a contested trial where unless, and unusually, liability is admitted, the defendant has sought to maintain that the publication was lawful and appropriate. Inevitably such trials attract further and considerable publicity which often gives wider currency to the allegations. In this case for example, the proceedings necessarily linked the plaintiff by name to the publication and in doing so well beyond the local community. The decision of a jury in favour of a plaintiff is of course a vindication, but it will never get the prominence or coverage of the original defamation, nor necessarily reach the persons who were exposed to the original article or publication. It is also necessarily reported to the public through media, normally, though not always sympathetic, to the media defendant. The award of damages is itself therefore a significant form of vindication for a wrong, since a substantial award demonstrates to the public in a very clear way, the view of a jury, being representative members of the public, of the original publication.

42 Finally, in a digital age which means that the public now rarely resort to newspapers as a source of news, much coverage becomes commentary which must fight in a crowded market place for attention from a public with an ever decreasing attention span. There is an inevitable tendency towards lurid headlines and extravagant allegations designed to provoke outrage and, therefore, attract attention. The law of libel is therefore a limited counter balance and protection for individual reputation from the commercial pressures which do not themselves otherwise impose a substantial restraint on defamatory publication. It is a protection not just for the person who commences proceedings, but for the public generally who do not wish to be the subject of defamatory publications.

43 For all these reasons, it is to be expected that where serious allegations are made and repeated, resulting in a contested action, that if a jury finds the publication to be libellous, that any damages awarded will often be substantial. It is also important to put that system of award of damages in the broader context of the laws which balance the protection of privacy and reputation with the requirements of freedom of speech. There is no single structure by which this balance is to be achieved.

44 Turning to this case, I agree that broad comparisons can be made with personal injuries awards and awards in other defamation cases. These can provide some sense check for the assessment of damages because they represent a system which attempts to put monetary values on injuries whether physical, psychological, or reputation. However, they cannot be treated as precise guidance. The assessment of damages for personal injuries has itself long been recognised as a business of equating incommensurables, or, as O’Higgins C.J. put it in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, “ assaying the impossible”. There is no market in personal injuries to which a court can refer for evidence and guidance. No one offers to sell, or would be permitted to buy, a broken leg. However, unless the cost of accidents causing injuries are imposed upon the person causing the accident, the inevitable outcome will be that the incentive towards careful conduct is reduced, and the number of accidents will increase. To some extent, a similar calculation arises here.

45 However, the assessment of damages for personal injuries is a more sophisticated and precise exercise than the assessment of damages for defamation. First, there is a finite range of injuries to the person which an individual can suffer and they are broadly comparable to each other and allowance can be made for a number of possible variables in age, gender, employment and activity levels. Perhaps even more importantly, there is a very large data set available. Courts and lawyers have experience of very large numbers of cases which itself provides a quite detailed grid against which any individual case can be mapped without ever necessarily considering the underlying and quite complex task of assessing from scratch the amount of damages that should be assessed for a particular injury. The maximum damages for pain and suffering which can be awarded does provide some guidance also. However, again in this respect care must be exercised. The so called “cap” on general damages for pain and suffering is normally assessed in conjunction with a substantial claim for special damages covering every possible cost which has been incurred or might be anticipated could be incurred by the injured party. The award of general damages, even at the maximum, is in such cases normally only a fraction of the overall award. It is sometimes said that part of the rationale for limiting the maximum amount for pain and suffering is partly because of the existence of comprehensive and extensive awards of special damages. It is clear, therefore, that no easy or direct comparison can be made in this regard with defamation cases. Nevertheless, as an indicator of courts’ approach to the business of ascribing a monetary value to the damage and injuries suffered by a plaintiff, the awards in personal injuries do provide some guidance. On this basis, plainly, the figure of €900,000 is comparatively speaking extremely high.

46 There is no market for defamatory publications and no reasonable proxy to provide a separate basis for assessing an award in a defamation case. Some guidance can be obtained from other substantial awards in defamation cases, particularly those which have been upheld on appeal, and to the extent where the Court of Appeal or Supreme Court substitutes its own award, then these may also provide some guidance. However, a note of caution is appropriate here too. While the monetary amounts awarded are readily comparable and can be placed on a scale, it is a much more difficult task to compare defamations than it is to compare personal injuries. A clean break may be less serious and may heal more quickly than a comminuted fracture. A fracture which enters an articular joint and gives to a risk or probability of future arthritis is more serious than one which does not. An injury to a young and active person may be different to the same injury sustained by someone older with a more sedentary lifestyle. These relativities should be reflected in awards. It is however more difficult to measure defamation in cases on any set scale. Taking simply by way of example the De Rossa and Leech cases and this case, each one has very different features. The distinctive aspect of the De Rossa case, was not just the serious allegations and the vigour with which they were pursued, but the longstanding reputation of the plaintiff, the fact that he was a very well-known figure, and the fact that his political career was based upon his reputation. He had achieved high office, and the publication threatened not just his public reputation, but his very career. On the other hand, the plaintiff in the Leech case was not widely known to the public at all, at least before the circumstances which gave rise to the series of publications. But on the other side of the balance, there were features of that case not present in De Rossa. As already discussed, the defamation in the Leech case was part of a repeated campaign which went to considerable lengths, both in the language used and photographs employed, to suggest an improper relationship on her part. Furthermore, and as already discussed, the damage done to her business was not only a significant factor in the case, but also one which made the assessment of damages more difficult. The issue in the present case is not readily comparable to either of those cases, although of course the award would suggest some comparison. There is no doubt that to allege that someone is a drug dealer, let alone a major drug dealer, and not establish the truth of that allegation, is a very serious defamation particularly when carried in the most prominent position in the largest circulating newspaper in the State. However, the plaintiff here was not identified by name in the article, or identifiable to the casual reader, and his position was not comparable to that of the plaintiff in the Leech case. Furthermore, the most distinctive feature of this case was the fact that the jury found, and indeed it was admitted, that the plaintiff was not a person of good reputation. It is, I think, an artificial exercise to imagine what a jury might have awarded had the plaintiff been of unblemished character and good reputation. If perhaps there was a mix up of identities and the newspaper article had named an entirely innocent person who had not been arrested or questioned or involved at any stage in the events described in the article, and assuming that that defendant did not acknowledge the mistake, but rather contested the case and insisted upon the truth of the article, I do not believe even then that award of €900,000 could be justified, in the absence at least of the substantial case being made of additional loss of business and profits. That however did not occur in this case. It is possible, from the manner in which the case proceeded, and the emphasis laid by the plaintiff’s legal team on certain matters, that the jury was influenced because of the poor view they may have taken of the degree of co-operation between the Gardaí and the newspaper, both at the time of the plaintiff’s detention and the publication of the story, and later at the trial. But disapproval of Garda behaviour could not be a basis for the award of very substantial damages against the newspaper. If this was not a factor, and the jury simply awarded this amount, as its assessment of damages, then, in my view, it was excessive and went beyond the amount any reasonable jury could award even if the plaintiff was a person of high reputation.

47 However, the exercise the jury had to carry out, and which this Court now has to review, was much more difficult. The plaintiff was a person who had a poor reputation. He, and in particular, his lawyers did not seriously contest that he was a tax evader and had a criminal record. Furthermore, he had entered into a settlement with the Criminal Assets Bureau. That Bureau is well known to be involved in the pursuit of assets which can be identified as the proceeds of crime. In doing so, it can additionally exercise revenue powers and powers under the social welfare code. In this case the settlement entered into was in relation to income tax, but it was part of the defendant’s case that that income tax was due on monies themselves the proceeds of crime. Nevertheless, and taking these matters into account, a jury was entitled to conclude that it was still defamatory to say of such person that they were a major drug dealer. I approach the assessment of damages on this basis. A court should in any event be slow to find that because a person has a bad reputation they have no reputation so that they become in effect an outlaw about whom anything can be said with impunity. However, the assessment of damages meant an assessment not simply of the damage done by a wrong allegation of drug dealing, but rather the extent to which a bad reputation had been made materially worse by the publication. Difficult as this is to assess, particularly at this remove, the difficulty is compounded by the fact that the jury was, and therefore this Court is, entitled to take into account the evidence led on the failed justification plea. This is an area where there is perhaps particularly wide scope for differing approaches. It is possible that the jury took the view that this evidence was irrelevant. For my part, the evidence is a significant additional feature to be added to the admitted fact of criminal convictions, tax evasions, and settlement with the Criminal Assets Bureau.

48 During the course of argument counsel for the defendant was invited to offer an assessment of an appropriate award of damages. He suggested an award of €75,000. It has to be assumed that this is itself part of a range of possible awards that could be justified. The figure does provide considerable support for the assessment to which my colleagues have come. For my part, I would perhaps have given some consideration to a lower figure, but I acknowledge that this reflects a view which I have formed, which is based on the transcripts of the evidence, and therefore without the benefit of hearing and seeing all the witnesses. It is thus an assessment which can benefit particularly from the form of collective judgment that results from the synthesis of the individual views of a jury, and in this case a collegiate court. In this case, I am therefore prepared to concur in what would in any event be the majority view of the appropriate award in this case. Accordingly I agree with the judgments of the Chief Justice and Dunne J. In deference to the fact that the parties have settled the proceedings between them I consider that it would be unfair to be more specific about the figure.