THE SUPREME COURT

BETWEEN

1. I have read the judgments of Denham C.J. and O'Donnell J. and I agree with them. I want to make some brief observations of my own.

2. The plaintiff in this case was the subject of an article which appeared on the front page and on inside pages of the edition of the Sunday World newspaper published on 5th September, 1999. The headline over the front page story which was the main story that appeared was "Traveller is new drug king". Underneath a sub headline said "[t]he shark is arrested as huge haul of hash and ecstasy is found". The story was continued inside on pages 2 and 3 in a similar vein. While the plaintiff was not mentioned by name in the article complained of, he was readily identifiable from the article and accompanying photographs, albeit that they were pixillated. The plaintiff brought proceedings for defamation arising out of the article and claimed inter alia that it meant that he was a criminal, that he was a drug dealer, that he was a tax evader and that he was a loan shark. A defence was duly filed pleading inter alia that the words complained of were true in substance and in fact. Following the trial of the action in February of 2008, the jury in response to the questions on the issue paper reached the conclusion that the plaintiff was not a drug dealer and was not a loan shark. They did however accept that the plaintiff was a tax evader and that the plaintiff was a criminal. The jury could hardly have concluded otherwise given that this was accepted by the plaintiff from the commencement of the trial before the jury. In circumstances which have already been described in earlier judgments of this Court and which do not need to be further addressed in this judgment, the jury proceeded to assess damages in favour of the plaintiff in the sum of €900,000.

3. The question arises as to whether that sum by way of damages is excessive as contended by the defendant and should be set aside on the basis that it is so excessive or is it an appropriate measure of damages having regard to the seriousness of the libel as contended by the plaintiff.

Amount of award
4. In the case of Leech v. Independent Newspapers (Ireland) Limited [2015] 2 I.R. 214 (“the Leech case”), in giving the majority judgment of this Court in that case, I considered the approach to be taken by an appellate court in considering the award of damages by a jury in the following terms (at para. 123):

"Counsel on behalf of Ms. Leech took issue with [the newspaper's] submission and argued that in the light of the decision of the Supreme Court in de Rossa v. Independent Newspapers plc. [1999] 4 I.R. 432 and having regard to the decision of the European Court of Human Rights in Independent News and Media v. Ireland (App. No. 55120/00), the position of the Supreme Court and indeed the European Court of Human Rights is that the Irish approach to scrutiny of the award of damages by a jury in cases such as this is compliant with the Irish Constitution and the Convention. It was further submitted that the decision of the European Court of Human Rights in Independent News and Media v. Ireland did not alter or reconfigure Irish law in respect of awards of damages in defamation actions. I agree with that submission. As is clear from the authorities referred to above, the position in Irish law is that an appellate court will be slow to interfere with the verdict of a jury on the assessment of damages but nevertheless awards by juries are subject to scrutiny and if an award is so disproportionate in the circumstances of the case having regard to the respective rights of freedom of expression on the one hand and on the other hand the requirement under the Constitution to protect the good name of every citizen, that no reasonable jury would have made such an award then the award will be set aside on appeal."

Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.

Thus it is clear that while the assessment by a jury of damages for defamation is not sacrosanct, it does carry considerable weight such that appellate courts have been slow to interfere with the assessments by a jury and an appellate court should only set aside such an award if the appellate court is satisfied that the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made the award in all the circumstances of the case."

"The judgment of Hamilton C.J. in [de Rossa]is a useful starting point in considering this question. Both parties on this appeal have cited a passage from his judgment in which Hamilton C. J. quoted with approval a passage on this topic from the decision of the Court of Appeal in John v. MGN Limited [1997] Q.B. 586, at page 463:
'The factors to be taken into account in determining the damages to be awarded are clearly set out in many cases and in particular in the judgment of the Court of Appeal in John v. MGN Ltd. [1997] Q.B. 586 at p. 607 of the report where it is stated as follows:-

‘The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way’.”

8. There was no question but that the plaintiff had a number of criminal convictions but there was some issue as to the extent of those convictions. In the course of opening the case counsel on behalf of the plaintiff described him as having had a tough upbringing and a tough life. It was then said:

"Along the way Mr. McDonagh got into trouble, plenty of it. There will be evidence - there is no dispute about this - of criminal convictions that Mr. McDonagh had but I want to tell you just a little bit about those convictions. They stem from 1981 through until 1984. They come from a time when the plaintiff was 19 to the age of about 22 or 23. They involved road traffic offences, driving with no insurance, but also one or two convictions for larceny"

"Defamation can impact on an individual in a number of ways. The defamation can impugn someone’s moral character. It can also impugn a person’s business, trade or professional standing. It can impact on other aspects of their status as a person, calling into question personal qualities such as honesty, loyalty, honour, thus impugning an individual’s personal integrity."

11. How does this case compare with other libel awards? It is one of the highest awards ever made by a jury. One must then consider if it is one of the most serious defamations to come before the Courts? Are there other factors at play that could explain the level of the award? This was a case of compensatory damages only. The question of aggravated damages did not go to the jury. In the Leech case to which I have referred, there was a sustained campaign against the plaintiff which went to the heart of the moral and business character of Ms. Leech. She had just launched a new business immediately prior to the publications at issue in that case and as I said in the course of the judgment in that case, the business simply never got off the ground. Clearly, the defamation in that case had a huge impact not just on every aspect of her personal/family life but also on her professional/business life. It is always going to be difficult to make a direct comparison between different defamations because of the variety of factors that may be at play, such as the nature of the defamatory allegation, the character and reputation of the person defamed, the extent of the publication and the impact on the person concerned, to name but a few, but in my view, taking the relevant factors into account, I cannot place the defamation in this case at anything close to the level of seriousness at issue in Leech. Even if the plaintiff in these proceedings was a person of impeccable character and reputation, which cannot be said, one would have to say that the sum awarded in this case was excessive. When one factors in all the particular circumstances of this case, I have no hesitation in saying that the award of the jury was disproportionate and should be set aside. The award is far larger than is necessary to put right the wrong done to the plaintiff's reputation.

Remittal or assessment
12. In circumstances where I am of the view that the award in this case should be set aside, the question then arises as to whether this matter should now be remitted to the High Court for an assessment of damages before a jury or whether this Court should now proceed to assess the appropriate damages to be awarded. The position of the plaintiff is strongly in favour of the assessment of the appropriate damages being dealt with by this Court. The defendant favours the remittal of this issue to the High Court.

13. An individual who seeks to vindicate their good name by bringing an action for damages for defamation has two options. The first of these is to bring proceedings in the Circuit Court claiming damages for defamation. The Circuit Court hearing will involve a hearing by a judge sitting alone and the damages available in the Circuit Court are less than those available to a plaintiff seeking damages in the High Court. The Circuit Court is a suitable venue for dealing with action in defamation where the defamation in issue is not so serious as to result in an award of damages in excess of the Circuit Court jurisdiction. In cases where the defamation is more serious, the appropriate venue is the High Court. The courts established in this State in the earliest days of Saorstát Éireann provided the right to trial by jury. (See s. 94 of the Courts of Justice Act 1924). That provision applied to the right to a jury in civil cases in the High Court and the Circuit Court alike. Civil juries were abolished for Circuit Court actions by s. 6 of the Courts Act 1971. Subsequently, s. 1 of the Courts Act 1988 provided for the abolition of juries in the majority of actions in the High Court. However, the Oireachtas expressly retained trial by jury for a limited number of proceedings including defamation actions. Thus the Oireachtas recognized the importance of the role of a jury in the task of vindicating a citizen's right to their good name. An important part of the task for the jury is the assessment of the damages due to an individual by reason of the injury caused to their reputation. Given the standard text book definition of defamation is that the words complained of tend to "lower the plaintiff in the estimation of right thinking members of society generally" (see Gatley on Libel and Slander, 10th Ed. (Sweet & Maxwell, 2007) at para. 1.5), it is appropriate that the Oireachtas has retained the use of a jury of right thinking members of society for the purpose of assessing the damages due to a plaintiff in defamation proceedings. Thus, at a philosophical level, one can well understand the desirability of a person whose reputation has been damaged by a defamatory statement turning to a jury of their peers, representing as they do the values and norms of the society in which they live, to measure the damages to which that plaintiff may be entitled. For that reason, it seems to me that it will only be in exceptional cases that an appellate court will attempt to undertake the difficult task of assessing damages in a defamation action such as this.

14. In the course of their legal submissions, it was pointed out by the plaintiff that the Supreme Court has jurisdiction to enter such judgment as the Court considers proper. Such provision was made in s. 96 of the Courts of Justice Act 1924 and was effectively re-enacted by s. 48 of the Courts (Supplemental Provisions) Act 1961. See also the decision in Holohan v. Donohoe [1986] I.R. 45.

15. While there is no doubt as to the jurisdiction of this Court to substitute its own award for that of a jury, it seems to me that in assessing damages in a defamation action, a jury is generally best placed to assess damages. Damage to reputation, as I have already explained, is best assessed from the point of view of the community and a jury is quintessentially in the best position to perform that task. Nevertheless there are cases where that may not be the appropriate course to take and I now wish to consider whether this is one of those cases.

16. The plaintiff, having expressed the view that the damages in this case were appropriate to the defamation concerned, nevertheless was strongly of the view that in the event that this Court found otherwise it would be preferable for this Court to assess damages rather than remit the matter to the High Court for a further trial with a jury. There are a number of reasons for that approach. In the event that the matter was to be sent back it was pointed out that there would have to be a hearing at which evidence would be given afresh in relation to the reputation of the plaintiff. That would inevitably involve hearing from a variety of witnesses in relation to the reputation of the plaintiff. The article complained of was published in 1999. Proceedings issued in 2000. The defence was delivered on the 2nd April, 2002 and the trial took place in February 2008. Following the verdict of the jury, the matter was then appealed by the defendant and ultimately came before the Court of Appeal. On 19th October, 2015, the Court of Appeal allowed the defendant's appeal and remitted the matter back to the High Court for further trial ([2015) I.E.C.A. 225). This led to the plaintiff seeking, and being granted, leave to appeal to this Court. There has been a considerable lapse of time since the publication of the article in question. The delay is, in my view, a factor to consider on this issue. There would be further delay if the matter was to be remitted to the High Court for the assessment of damages. It is not a case of attributing blame to the plaintiff and the defendant in relation to delay. Some of the delay is attributable to delays within the court system.

17. What is not at issue in truth is the cause of the delay but rather the fact of delay. I have no doubt whatsoever that the circumstances of this case are such that given the lapse of time between the publication and the time which would necessarily elapse before a re-trial, it would not be in the interests of either of the parties to remit the assessment of damages to the High Court as this would lead to further expense and delay. Any re-trial could not be done without hearing from the witnesses afresh and that in itself could prove difficult given the lapse of time. Witnesses will inevitably have less ability to recall the events of 18 and more years ago and thus the quality of their evidence will be affected. A trial so far removed from the events of this case would be far from ideal. Following a retrial on the assessment of damages, it is possible that a further appeal could be taken by either of the parties. For all these reasons and having regard to the costs that would be necessarily incurred in a further re-trial of the issue of damages, it seems to me that this is one of those rare cases in which it would be appropriate for this Court to assess damages rather than remit the matter to the High Court. This case is the exception rather than the rule to the general proposition that if the jury verdict is set aside as being disproportionately high, the matter should be remitted to the High Court for a fresh trial before a judge and jury. In this case, however, it is undoubtedly in the interests of justice for the parties at this stage to bring an end to this lengthy litigation.

Assessment of damages
18. For the purpose of assessing damages, the Court has canvassed with counsel for both parties as to where this case should lie on the scale of defamation awards. Not surprisingly, counsel for the plaintiff maintained that given the serious nature of the defamation involved it was one which should attract damages at the level assessed by the jury. For reasons previously explained, I reject that submission. From the point of view of the defendant, the view was expressed by counsel that an appropriate starting position would be at the figure of €75,000.

19. I have considered the figures mentioned by counsel on both sides. I have considered the nature of the libel, the impact on the plaintiff, the nature of the plaintiff's reputation and the extent of the publication. I have considered the nature of a citizen's right to vindicate their good name and the right of the defendant's freedom of expression. Bearing in mind these considerations it seems to me that the appropriate sum to assess by way of damages taking into account all of the factors I have mentioned would be a sum which is very substantially reduced compared to the sum awarded by the jury. In circumstances where the parties announced to this Court that agreement had been reached by the parties as to the appropriate sum for damages together with costs and in view of the application by the parties not to publish the sum assessed by the Court as the appropriate figure, I have agreed with the majority of the Court not to refer in this judgment to the amount so assessed.