Judgments Of the Supreme Court


Judgment
Title:
Leech -v- Independent Newspapers (Ireland) Limited
Neutral Citation:
[2014] IESC 79
Supreme Court Record Number:
282/09
High Court Record Number:
2004 19853 p
Date of Delivery:
12/19/2014
Court:
Supreme Court
Composition of Court:
Murray J., McKechnie J., Dunne J.
Judgment by:
Dunne J.
Status:
Approved
Result:
Allow And Vary
Judgments by
Link to Judgment
Concurring
Dunne J.
Murray J.
McKechnie J.



THE SUPREME COURT
[Appeal No. 2009/282]

Murray J.
McKechnie J.
Dunne J.

BETWEEN

MONICA LEECH
PLAINTIFF/RESPONDENT
AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED

DEFENDANT/APPELLANT

Judgment of Ms. Justice Dunne delivered on the 19th day of December, 2014

This is one of two appeals in respect of the litigation between the parties. Both appeals were heard on the same day. This appeal is brought on behalf of Independent Newspapers (Ireland) Limited (hereinafter referred to as the Newspaper) from the order of the High Court made herein on the 24th June, 2009 in which the plaintiff/respondent (hereinafter referred to as Ms. Leech) was awarded the sum of €1,872,000 by way of damages for libel together with an order for costs made herein on the 26th June, 2009.

Background
Ms. Leech in these proceedings sought damages for libel arising out of a series of articles in the Evening Herald newspaper owned and published by the Newspaper between the 30th November, 2004 and the 17th December, 2004. Ms. Leech instituted proceedings against the Newspaper on the basis that the articles in their natural and ordinary meaning meant that she was having an extramarital affair with Mr. Martin Cullen who was then the Minister for the Environment. Prior to the commencement of the proceedings, Ms. Leech worked as a Communications Consultant advising the Office of Public Works and subsequently, the Department of the Environment. Mr. Cullen was a junior minister in charge of the Office of Public Works and, subsequently, between 2002 and 2004 he was the Minister for the Environment.

The trial of the proceedings took place before a judge and jury over seven days and at the conclusion of the evidence the following questions were put to the jury:

        “1. Did the articles mean that the plaintiff had an extramarital affair with Minister Martin Cullen?

        2. Did the articles mean that the plaintiff had travelled to New York with Minister Martin Cullen for a United Nations Conference and failed ever to attend it?

        If the answer to questions Nos. 1 and 2 is “No” proceed no further.

        If the answer to questions Nos. 1 or 2 is “Yes” assess damages.”

The jury brought in a verdict having answered the questions as follows:
        “Question 1: Yes.

        Question 2: No.

        Damages: €1,872,000.”

Accordingly, judgment was entered for that amount on the 26th July, 2009 and it was further ordered that a sum of €750,000 on account of the damages awarded and the sum of €100,000 on account of the costs awarded be paid forthwith and a stay was granted in respect of the order in the event of an appeal together with a stay on the payment of the sums of €750,000 and €100,000 until the 31st July, 2009 or until further order.

The appeal
The Newspaper has appealed from the judgment and order of the High Court made herein and the notice of appeal sought inter alia:

        (1) An order directing a re-trial in the High Court on the issue of damages. The appeal in that respect was grounded on the following basis:
            “The damages awarded against the defendant/appellant were of such a level that no reasonable jury could award and/or were disproportionate to the damage caused and/or constitute an unlawful interference with the defendant’s rights under the Constitution and/or under the European Convention on Human Rights.”
Complaint was also made as to the decision of the learned trial judge to direct the payment out of the sum of €750,000.

Scrutiny of the award of damages by a jury
This is a case which pre-dates the enactment of the Defamation Act 2009 which introduced new provisions, inter alia, in relation to damages particularly, in relation to the directions to be given to a jury by the trial judge in respect of a trial in the High Court and the matters to which regard shall be had in assessing damages. Prior to the 2009 Act, the trial judge was limited as to the directions that could be given to a jury on the subject of the quantum of damages. The assessment of damages was and remains a matter entirely for the jury but by virtue of the provisions of the 2009 Act it is now possible for the trial judge to give more detailed directions to a jury as to the assessment of damages. The position was different when these proceedings came to trial before the High Court. It is not suggested that there was any error on the part of the trial judge in his charge to the jury on the question of damages. Rather the complaint made is that the award of damages made herein is so disproportionately high that it ought to be set aside. However, it is important to point out that the fundamental task of this Court on an appeal from the verdict of a jury on the basis that the damages awarded were excessive, remains the same.

The parties in their respective submissions have both referred to a number of the same authorities in which the difficult question as to the assessment of damages in defamation actions has been considered. The first of those is the Supreme Court decision in the case of Barrett v. Independent Newspapers Limited [1986] I.R. 13. A passage from the judgment of Henchy J. in that case (at page 23) has subsequently found approval in a number of other decisions and for that reason it would be helpful to refer to the relevant passage in full. Henchy J. stated:

      “In a case such as this in which there is no question of punitive, exemplary or aggravated damages, it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts as found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the plaintiff, the extent of the publication, the conduct of the defendant at all stages of the case, and any other matter which bears on the extent of the damages. The judge, quite properly, in this case told the jury to ignore all matters in the article save the allegation of an assault. Also, quite properly, he told the jury that they should not allow their assessment of damages to be affected by the fact that the plaintiff had agreed to donate the damages to charity. Indeed it is right to point out that no criticism was made at the trial by either side of any part of the judge's address to the jury.

      The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader's success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, I venture to think that having regard to the various kinds of allegations of criminal, immoral and otherwise contemptible conduct that might have been made against a politician, the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it in another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”

Subsequently in the case of de Rossa v. Independent Newspapers Plc [1999] 4 I.R. 432, Hamilton C.J. having quoted that passage commented:
      “This passage emphasises:

        (a) that it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of;

        (b) that it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered; and

        (c) that if the award is disproportionately high, it will be set aside and not allowed to stand.


      The obligations arising from the provisions of the Constitution and the Convention are met by the law of this State, which provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.”
One of the matters at issue in that case was the question of whether or not guidelines should be given to the jury as to the level of damages awarded in other libel cases and in relation to the level of damages in personal injuries cases but the Supreme Court in de Rossa rejected the suggestion. Counsel on behalf of Ms. Leech laid particular emphasis on a passage from the judgment of Hamilton C.J. (at page 462) where he stated:
      “That does not mean that the discretion of the jury is limitless: the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such appeal, the award made by a jury is scrutinised to ensure that the award complies with these principles.”
It was stated by Finlay C.J. in the course of his judgment in Barrett v. Independent Newspapers Limited [1986] I.R. 13 (at page 19) that:
      “With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, whilst 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.”
The “sanctity” of such awards is recognised in the passage from the judgment of the Court of Appeal in John v. MGN Limited [1997] QB 586 where it is stated at page 616 of the report as follows:
      “The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge.”
Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of the judge.

Consequently, an appellate court should only set aside an award made by a jury in a defamation action if the award made is one which no reasonable jury would have made in the circumstances of the case and is so unreasonable as to be disproportionate to the injury sustained.

It has been submitted on behalf of the defendant that larger awards should be subjected to a more searching scrutiny than has been customary in the past and that the test to be applied is:

      “Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?”
If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to by Finlay C.J. and the giving of “real weight” to the possibility that their judgment is to be preferred to that of the judge as stated by Sir Thomas Bingham M.R.

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. Counsel on behalf of the Newspaper laid emphasis in his submissions on the requirement of proportionality. Reference was made to a further passage from the judgment of Hamilton C.J. in de Rossa at page 456 in the context of whether guidelines as to quantum by reference to figures should be given to a jury where Hamilton C.J. said:

      “It is submitted on behalf of the defendant that the aforesaid guidelines should be given to the jury in a defamation action and that the giving of such guidelines are mandated by the Constitution and Article 10 of the Convention as being necessary to vindicate the defendant's rights under the Constitution and the Convention.

      By virtue of the provisions of Article 40.6.1 of the Constitution, the defendant is entitled, subject o the restrictions therein contained, to exercise the right to express freely its convictions and opinions.

      The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1 and 40.3.2 which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen.

      Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.

      The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen's good name (Hynes-O'Sullivan. v. O'Driscoll [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”

Counsel on behalf of the Newspaper also referred to the case of Independent News and Media & Independent Newspapers Ireland Limited v. Ireland (Application No. 55120/00, judgment 16th June, 2005) in which complaint was made by the Applicant against Ireland arising out of the decision in de Rossa. The complaint made was that the safeguards provided in Irish law against disproportionately high jury awards in libel cases were inadequate. The European Court of Human Rights in its judgment (at para. 110) commented as follows:
      “110 The parties also agreed, and indeed it was made clear in the Tolstoy Miloslavsky judgment (at para. 49), that an award of damages following a finding of libel must be ‘necessary in a democratic society’ so that it must bear a reasonable relationship of proportionality to the injury to reputation suffered. The jurisprudence does not provide for a shifting protection of the rights involved once libel is established (as suggested by the Government at paragraph 90 above): rather the Court assesses whether the compensatory response to a libel was a proportionate one by finding where the appropriate balance lies between the conflicting Convention rights involved (Von Hannover v. Germany, no. 59320/00, para. 58, ECHR 2004 . . .).

      111. However, the parties diverged on the question of whether the present award was proportionate. The applicants considered the award to be of such significance that the Court could not conclude as to its proportionality without examining the adequacy and effectiveness of the domestic safeguards against disproportionate awards and maintained that their application was indistinguishable from that of Tolstoy Miloslavsky. The Government were of the view that the issues raised were more complex than a mechanical application of that judgment and that, in any event, the present case was clearly distinguishable from the Tolstoy Miloslavsky case.”

The European Court of Human Rights concluded that it was not demonstrated, “that there were ineffective or inadequate safeguards against a disproportionate award of the jury in the present case”. Counsel on behalf of the Newspaper relied on those authorities and on the judgment of the European Court in the case of Scharsach v. Austria, Application No. 39394/98, judgment of 13th November, 2003, to argue that a disproportionately large award was an interference with the rights of the other party under Article 10 of the Convention which of course provides for the right to freedom of expression. This, of course, was recognised by Hamilton C. J. in the case of de Rossa where he acknowledged that the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name as referred to in the passage cited above.

Ultimately it was argued that having regard to the decision of the European Court of Human Rights particularly in the case of Independent News and Media Limited v. Ireland that there was limited room on appeal for any special deference towards jury awards of damages. Counsel on behalf of Ms. Leech took issue with that submission and argued that in the light of the decision of the Supreme Court in de Rossa and having regard to the decision of the European Court of Human Rights in Independent News and Media v. Ireland 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.

Factors to be taken into consideration
It is obvious that in subjecting an award of damages to scrutiny, it will be necessary for an appellate court to examine the facts and circumstances of any given case as it is only by doing so that one can determine whether the award is disproportionate to the wrong done. What factors can be taken into consideration in this regard?

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] QB 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] QB 586 at page 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’.”
Hamilton C.J. in the de Rossa case then proceeded to consider the damages awarded in that case under a number of specific headings, namely, the gravity of the libel, the effect on the plaintiff, the extent of the publication and the conduct of the defendant. I propose to consider these factors later in the course of this judgment but before doing so there are two other matters to which I wish to refer.

Compensatory damages
Counsel on behalf of the Newspaper have pointed out that the damages awarded in this case are “compensatory” damages. It was accepted that the role of compensatory damages in defamation cases is not on all fours with the role of compensatory general damages in personal injuries cases. There is a “vindicatory” element to damages in defamation cases which is not a factor in general damages in a personal injuries case. Nevertheless, it was argued that the core purpose of compensatory damages in libel cases is to compensate the plaintiff for the injury actually suffered such as injury to reputation, distress, hurt and humiliation. It was pointed out that there was no award of aggravated or exemplary/punitive damages made in this case. By contrast, counsel on behalf of Ms. Leech stated that compensatory damages embrace a variety of elements. It was submitted that one of those elements involved what could be described as aggravating factors, such as the conduct of a defendant even if that was not expressly provided for in the award of the jury. Reference was made to a passage from McMahon and Binchy, Law of Torts (4th ed.) in which the learned authors, speaking of the position that pertained prior to the coming into force of the Defamation Act 2009, made the following observation (at para. 34.366):

      “Punitive damages were available in defamation claims though they were rarely awarded expressis verbis. Many very substantial jury awards over the years can be explained only in terms of their punitive purpose.”
Juries in defamation actions are sometimes asked to assess not just compensatory damages but also aggravated damages under separate headings and, in an appropriate case, exemplary/punitive damages. This is not a case in which the matter went to the jury on the basis that the jury was asked to assess damages under separate headings of general damages, aggravated damages and/or exemplary/punitive damages. To that extent this case has to be viewed on the basis that the award was designed to meet the factors encompassed by way of compensatory damages. It is not necessary to repeat again the passage quoted by Hamilton C.J. in de Rossa from the judgment of Sir Thomas Bingham M.R. in the case of John v. MGN which sets out in detail the nature of compensatory damages in defamation proceedings. As can be seen, a variety of factors require to be taken into consideration. Sir Thomas Bingham M.R. referred to the fact that compensatory damages could include an element to compensate for additional injury caused by the conduct of the defendant. To some extent there is an overlap with what is comprised in the category of aggravated damages. It is perhaps worth recalling the succinct description of damages given by Finlay C. J. in the case of Conway v. Irish National Teachers Organisation [1991[ 2 I.R. 305 in which he gave the following analysis of damages:
      “In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are: –

        1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.

        2. Aggravated damages, being compensatory damages increased by reason of

            (a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or

            (b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or

            (c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.”

        Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.

        3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court's particular disapproval of the defendant's conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.”

Thus, it can be seen that aggravated damages are an element of compensatory damages increased by reason of such matters as were spelt out by Finlay C.J. There is a degree of overlap between ordinary compensatory damages and aggravated damages in defamation actions. The fact that a separate question did not go to the jury herein asking them to assess aggravated damages does not mean that when the jury were assessing damages having regard to the circumstances of the case, they could not consider the conduct of the defendant both in relation to the publication at issues, the lack of an apology and the manner in which the case was defended. In other words, their award could properly encompass an element of damages designed to compensate for those matters which, in an appropriate case, could be dealt with by way of a separate heading of aggravated damages.

The learned trial judge herein in his charge to the jury explained the purpose of damages as having three functions, namely:

      “Consolation for the distress caused by the defamatory statement; to repair the harm to his or her reputation, and that includes business reputation, . . . and a vindication of the person’s reputation.”
He went on to tell the jury that they could consider, inter alia, the conduct of the plaintiff, her position or standing in society in Waterford, in Dublin, in her business community. He told them that they could consider the nature of the libel which in this case contained the suggestion that “She was immoral, that she was unfaithful to her husband, that she was a person of – the phrase is ‘loose morals’, that she had betrayed her marriage, that she had betrayed her family”. He told them that they could consider the mode and extent of the publication. He also advised them that they were entitled to take into account the absence of an apology if the jury considered that to be appropriate. He pointed out that the jury would be entitled to take into consideration, if they took the view that this was a gross defamation, the fact that the Newspaper had maintained that defamation “right up to what would be the bitter end”. These are factors that the learned trial judge told the jury they were entitled to consider. There was no issue raised by the defendant in this appeal regarding the charge to the jury.

It is long established that the jury in assessing damages can take into account relevant aspects of the conduct of the defendant from the time of publication up to the conclusion of the case, including such matters as the nature of the defamation, the extent of the publication, the absence of an apology or persisting in a plea of justification which is not supported by the evidence. These factors can be considered under the heading of compensatory damages or in an appropriate case, aggravated damages. There is no basis in this case to support the contention that in assessing compensatory damages, the jury took into account matters which did not arise under the heading of compensatory damages or that the jury was restricted in making the award of compensatory damages by reason of the fact that there was no separate heading of aggravated damages on the issue paper that went to the jury.

Comparisons with other awards
It was urged on the Court on behalf of the Newspaper that in considering the issue of proportionality it was open to this Court to consider awards that had been set aside as being too high in other defamation cases. Reliance was placed on the judgment of Keane C.J. in the case of O’Brien v. Mirror Group Newspapers Limited [2001] 1 I.R. 1 where he said at page 18:

      “. . . I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett v. Independent Newspapers Ltd. or Hamilton C.J. in de Rossa v. Independent Newspapers plc. to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court.”
Undoubtedly, some assistance may be derived from a comparison of other cases in which awards have been set aside. Nevertheless one has to be careful in taking that approach. As Keane C.J. went on to say (at page 18):
      “No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Broome v. Cassell and Co. [1972] A.C. 1027 at p. 1071, when drawing the distinction between damages in defamation cases and damages for personal injuries: –

        ‘What is awarded is . . . a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.’

      Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.”
The Court in that case proceeded to compare the damages awarded to the plaintiff in those proceedings as against the damages awarded in the de Rossa case. Keane C.J. went on to comment:
      “In the present case, the article complained of stated that the plaintiff had paid £30,000 to a government minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in de Rossa v. Independent Newspapers plc. [1999] 4 I.R. 432. The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.”
In the O’Brien case, the jury had awarded the plaintiff £250,000 by way of damages. The verdict of the jury was set aside and a re-trial was ordered. Ironically, the re-trial resulted in a decree of €750,000, a sum considerably more than that previously found to be excessive. No doubt the passage of time between the date of the original libel trial and the date of the subsequent libel trial had some bearing on the difference in the sums awarded. The passage of time elapsed between awards in other cases together with the wide variations possible in the factual matrix necessitates that some degree of caution must be exercised in determining whether an award of a jury is disproportionate by comparison of that award with other awards set aside on the basis of being excessive. Nevertheless, comparisons with other cases may provide some assistance in assessing the gravity of the libel.

It was also urged on the Court by counsel on behalf of the Newspaper that in considering the level of damages to be awarded in defamation actions, the Court should have regard to the highest level of general damages that may be awarded in the most serious personal injuries cases. It was argued that such an approach would be of assistance in assessing the proportionality of the damages awarded. Reliance was placed on the Supreme Court decision in the case of M.N. v. S.M. [2005] 4 I.R. 461, a case involving a trial by judge and jury in which the sum of €600,000 was awarded to the plaintiff in respect of injuries suffered by her by reason of the sexual abuse of the defendant over a number of years culminating in rape. The Supreme Court in that case set aside the award of €600,000 and substituted a sum of €350,000 by way of general damages on the basis that the sum of €600,000 was so far in excess of a reasonable award of compensation that it was disproportionate and needed to be set aside. One of the factors of relevance in that case was noted by Denham J. at page 467 of her judgment:

      “It appears that this is the first award of damages for sexual abuse by a civil jury. It is the first appeal before the Supreme Court from such an award which raises the issue of the sum to be awarded in general damages for sexual assault, sexual abuse and rape in a continuum, of a teenage girl. Consequently, there are no precedents to guide the court. However, there is information from other sources which may inform the court and which may be of assistance.”
Denham J. went on to comment in the course of her judgment at page 475 as follows:
      “At issue on this appeal is the award of general damages by a jury. In assessing the level of general damages, there are a number of relevant factors to consider. Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined.”
She went on to observe:
      “Having considered the facts and all the circumstances of the case, including the nature of the injuries of the plaintiff, the law on general damages for personal injuries, noting (but not applying) the Residential Institutions Redress Act 2002 and making reference to the conduct of the defendant in admitting his guilt at an early stage of the criminal proceedings, I am satisfied that the sum of €600,000 awarded by the jury is so far in excess of a reasonable award of compensation that it is disproportionate and should be set aside.”
Accordingly she allowed the appeal on the question of damages. She also expressed the view that she was satisfied that there “should be a rational relationship between awards of damages in personal injuries cases”.

I think it is apparent that there is a close relationship between an action for personal injuries and an action for damages for assault arising out of sexual abuse such as that described in M. N. v. S. M. Both such actions are, in reality, a form of action for damages for personal injuries. There is an obvious correlation between the type of damages that can be awarded in a personal injuries case and in a sexual assault case. It is not so easy to see an obvious correlation between an award in a personal injuries action and an award in an action for defamation. McMahon and Binchy, Law of Torts, make the following observation as to the difficulty in making an analogy between the situation in personal injuries awards and those in defamation cases at paragraph 34.364:

      “It seems probable that, over time, a rough judicial ‘tariff’ will emerge as the Supreme Court translates broad generic ascriptions, such as ‘very serious’ and ‘most serious’, into actual numbers of euros. In England the courts have applied what is ‘in effect a ceiling’ figure, now of the order of £275,000.

      We suggest that the Supreme Court should hesitate before following that lead. The English courts have been affected by the analogy of damages awards in personal injuries claims, where a ‘cap’ for general damages applies, as it does in Ireland. But that cap is based on considerations of principles and policy relating to personal injuries which has no direct parallel with those relating to defamation, where the function of damages ranges beyond compensating the feelings of the plaintiff to vindicating his or her good name.”

The authors went on to refer to the provisions of s. 31(7) of the 2009 Act which permits the Court to award special damages for financial loss suffered by a plaintiff as a result of injury to his or her reputation and observed:
      “It may be that compensation for future economic losses will be incorporated into a global award of general damages and in any event the boundaries between special and other compensatory damages are somewhat porous.”
One of the arguments made in the de Rossa case was that juries should be told about the level of awards in personal injuries cases. Hamilton C. J. stated as follows at p. 459:
      “On the issue as to whether or not references to awards in personal injuries actions should be permitted, I prefer the conclusion reached by the Court of Appeal in Rantzen v. Mirror Group Newspapers Ltd. [1994] Q.B. 670 to that reached in John v. M.G.N. Ltd. [1997] Q.B. 586 and accept the reasoning contained in the following passage from the judgment of Lord Hailsham L.C. in Broome v. Cassell & Co. [1972] A.C. 1027, where he stated at p. 1071:-

        ‘In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in Uren v. John Fairfax & Sons Pty Ltd. (1966) 117 C.L.R. 118 at 150: ‘It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.’ This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’. In a sense, too, these damages are of their nature punitive or exemplary in the loose sense in which the terms were used before 1964, because they inflict an added burden on the defendant proportionate to his conduct, just as they can be reduced if the defendant has behaved well - as for instance by a handsome apology - or the plaintiff badly,…”
Hamilton C.J. was dealing with the question or whether or not the jury should be told about the type of awards that could be made in personal injuries cases but the reasoning contained in the passage set out above demonstrates why there is a problem in trying to make a comparison between the awards of damages in personal injuries cases with the awards of damages in defamation cases. I have come to the conclusion that the analogy of awards in personal injuries cases may be of some assistance in the area of injuries caused by reason of sexual abuse but is not so useful an analogy in the case of awards in respect of defamation actions for the reasons explained above.

The gravity of the libel
I now propose to examine the factors that should be taken into account when considering the proportionality of the award of damages in this case, starting with the gravity of the libel. The starting point for this consideration has to be the meanings ascribed to the words complained of by the jury. It is clear from the answer to the questions posed to the jury on the issue paper that the jury accepted the thrust of Ms. Leech’s case to the effect that the article meant that:

        (a) she, a married woman with two children, had an affair with the Minister;

        (b) that as a result of that affair, she got lucrative Government contracts;

        (c) that she was someone who was prepared to have an adulterous affair to advance her business career;

        (d) that she betrayed the trust of her husband and children.

Undoubtedly the articles complained of by Ms. Leech in these proceedings amounted to a serious and sustained attack on her business and personal integrity. I think one could fairly compare the libel in this case with that in the O’Brien case which contained an allegation that the plaintiff had paid a £30,000 bribe to a Government Minister to procure a lucrative radio licence. In effect Ms. Leech was accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts. Such a defamation would undoubtedly have a serious effect on an individual’s business and personal reputation. I accept that the defamation in this case could not be described in the same terms as that in the de Rossa case which was described as coming within the category of “the gravest and most serious libels which have come before the courts” but it is nonetheless a very serious libel. Given the allegations of adultery made in respect of Ms. Leech, this must have been a source of real hurt and distress to Ms. Leech.

The extent of the Publication
The articles complained of in this case were published in the Evening Herald newspaper between the 30th November, 2004 and the 17th December, 2004. In all, the plaintiff sued in relation to eleven articles in nine editions of the Evening Herald newspaper over that period of time. This was described by Ms. Leech’s lawyers as a “deliberate press campaign”. A reference to a number of the headlines over some of the articles complained of give a flavour of the nature of the publications complained of. On the 30th November, 2004, the headline stated: “Minister’s P.R. friend on €1,200 every day”; on the 1st December, 2004, the headline read: “Cullen gave pal a SECOND top job”; also on the 1st December, 2004, the headline over an article was as follows: “Insiders reveal the luxury lifestyle of €1,200 a day political guru”. Over the following days headlines included the following: “Minister to face Fine Gael grilling over Leech controversy”; and “Cullen faces music over crony claim” and “Heat on Minister as Leech job offer is probed”; “Why inquiry must get to the bottom of Monicagate” and “Cullen paid Monica an extra €43,000”. A number of other articles focused on the role of the Minister. It can be seen that there was a sustained campaign over a number of days. The Evening Herald newspaper is a newspaper that circulates widely within the State having a circulation of approximately 90,000 newspapers sold per day. Further, the readership of the newspaper would be in excess of that number. This was not a one-off publication in a newspaper but rather was part of a sustained campaign building up over a period of just over two weeks. At the end of that period, Ms. Leech had gone from a person who would not have been known to the general public at all to someone who was notorious. The proportionality of the damages therefore has to be considered on the basis that the publication of the defamation in this particular case was particularly extensive and widespread.

The conduct of the defendant
The Newspaper in this case in the course of its defence pleaded a number of defences including justification (although it has to be said that the Newspaper did not seek to justify the meanings contended for by Ms. Leech but approached the matter by seeking to justify the articles on different meanings), fair comment, and what is now known as “Reynolds” privilege. The defence of Reynolds privilege was dropped during the course of the trial. This is a case which went to the jury on the basis of the two questions set out above. Insofar as the question of justification is concerned it is clear that the jury did not accept the arguments put forward on behalf of the defendant and accepted the meanings contended for by the plaintiff as set out in the first question put to the jury. To run a defence of justification on any basis and to fail is a matter which can be taken into account by the jury in the assessment of damages. It is, as was described in the course of submissions on behalf of Ms. Leech, a high risk strategy for a defendant.

That this is so can be seen from the judgment of Hardiman J. in the case of Bradley v. Independent Star Newspapers [2011] 3 I.R. 96 at page 122 where Hardiman J. stated:

      “In my view, a defendant who wishes to plead justification must realise that he must justify the article actually published. In some cases there may be some genuine doubt as to its meaning: there is none here.

      Odd forms of pleading such as this may arise in circumstances where the defendant realises that he cannot justify what he actually printed but believes he may be able to justify something not dissimilar. Accordingly, he pleads that the article means something other than what the plaintiff alleges and that, in this sense, it is true.

      A plaintiff confronted with such a plea, in order to ensure an efficient and relatively brief hearing, which is no more expensive than it needs to be, should in my view consider bringing an application to the court by way of motion to decide whether or not the plea is a good one, and to resolve any genuine issues of meaning.”

Such a course did not occur in these proceedings. However, the point is that the Newspaper pleaded justification albeit not of the meanings contended for by Ms. Leech. This is, as was pointed out, a risky strategy and one which did not succeed, clearly.

It was also pointed out on behalf of Ms. Leech that no apology was offered by the defendant at any stage. Reference was made to the remarks of Geoghegan J. in the course of the decision in O’Brien which he said at page 43 of the judgment:

      “In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been open to the jury to take the view that they had done so. The award had to be of a level that the plaintiff would feel reasonably compensated.”
Thus, obviously, one of the factors that can be and may well have been taken into consideration by the jury in this case was that at no stage was there any offer of an apology to Ms. Leech by the Newspaper.

A newspaper that published no photographs would be a very dull newspaper, indeed. It is often the case that newspaper articles are accompanied by photographs which illustrates the article in which they appear. A further aspect of the conduct of the defendant complained of in these proceedings relates to the manipulation of the photographs which accompanied the newspaper articles at issue in these proceedings. One of the photographs was originally a photograph with four people in it including Ms. Leech and the Minister. It was cropped to show just the Minister and Ms. Leech and she complained that it was cropped in such a way as to give the impression that she and the Minister were “holding hands”. (See Day 4, page 103 of the transcript). She made this complaint about the photograph accompanying the article set out in Schedule 5 and again at Schedule 7 of the series of articles. She also complained of a photograph that showed her with a backdrop of New York. In that case there was a photograph of Ms. Leech the original of which was at a function in Waterford. It would perhaps be helpful to quote directly from the transcript of her evidence in this connection which is at page 103 of the transcript on Day 4, commencing at line 13:

      “Then if you go all the way to this photograph, I was wearing this dress at a private function in Waterford, whereas behind me is the New York skyline. That takes an awful lot of effort, an awful lot of skill and a huge amount of intent on the part of the Herald to portray me in New York in a dress with the Minister. This time the Minister has been removed and a new version of him in a lounge suit is put in to make it look again as if I actually cavort during the day on government business in a dress like this. Then that brings me to the dress. Again, the photograph has been with great intent, with great skill has been manipulated to make my hand, which is down by my side, appear like my thigh. The dress has been manipulated, the photograph has been manipulated to now give me a dress that is slit to the waist, something I would never wear. Certainly this is not a way I ever appeared on government business.”
There is no doubt that the photographs used in the various articles were taken from real photographs of Ms. Leech with the Minister albeit in company with others. Equally there is no doubt that the photographs were cropped and manipulated. The photograph of Ms. Leech displayed against the background of New York certainly gave the impression that the type of dress being worn by Ms. Leech was one slit to the thigh. The fact that the photographs were manipulated and altered or cropped in the way described is something that the jury were asked to take into consideration in their deliberations on behalf of Ms. Leech and it was contended to the jury that the purpose of doing this was to suggest that Ms. Leech and the Minister were having an affair. It seems to me that the jury were entitled to take that aspect of the matter into account in the course of their deliberations. It was open to the jury to consider that the manner in which the photographs were manipulated was designed to lend force to the implication contained in the articles to the effect that Ms. Leech got her contracts by virtue of the fact that she was having an affair with the Minister. Therefore, this was an aspect of the conduct of the Newspaper that could be taken into consideration by the jury and, if considered by them to be appropriate, to mark it in their assessment of the damages.

The impact of the defamation
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.

The defamation in this case was far reaching in the sense that it attacked Ms. Leech in respect of her personal and professional life. She was a married woman with two children. The implication of the articles was that she was unfaithful to her husband and that she had a part to play in the break-up of the marriage of Mr. Cullen and his wife.

The defamation attacked her professional integrity in that it conveyed to the world at large the impression that she was prepared to engage in an adulterous relationship in order to advance her professional standing and career. Running through the case was a question mark over the capability of Ms. Leech for the tasks for which she was engaged. Thus, the articles attacked not just her moral character but also her professional reputation.

Immediately prior to the appearance of this sequence of articles Ms. Leech had set up a consultancy business with another individual. That business was launched at the annual dinner of the Waterford Chamber of Commerce in November 2004. Following the publication of the articles, the individual with whom she had set up the business consultancy pulled out of the partnership with Ms. Leech. The business she had hoped to establish at that stage simply never got off the ground. In addition, at the conclusion of the contract with the Department of the Environment, her contract was not renewed.

Ms. Leech in the course of her evidence also described her own personal hurt and distress over the series of articles that appeared. She described not only her stress but also the effect that the articles had on her sons and on her husband. One of her sons had to change school during his Leaving Certificate year because of the articles. I think it is undoubtedly the case that the articles caused a great deal of stress to Ms. Leech and her family. In addition, she described how she was personally abused in Waterford as a result of the articles. Overall, it would be no exaggeration to say that the series of articles published by the Newspaper in respect of Ms. Leech had a profound effect on her in every aspect of her family and professional life. This is also a factor that can be taken into consideration by a jury.

Freedom of expression
The point was made on behalf of the Newspaper that the Court in considering the question of damages should have regard to the freedom of expression of the Newspaper. The argument was that extremely large awards of damages in cases such as this have a chilling effect on the freedom of the press and therefore should be subject to careful scrutiny. In this context, reliance was placed on the decision of the Supreme Court in the case of Dawson v. Irish Brokers Association, the Supreme Court, Unreported, 27th February, 1997, in which O’Flaherty J. observed at page 25 of the judgment:

      “There may be cases where the circumstances of the case will call for the consideration of an award of aggravated or exemplary damages. But this was not such a case. The damages, as far as this case is concerned, could be compensatory only. The jury were entitled to award damages for loss of reputation, as well as for the hurt, anxiety, trouble and bother to which the plaintiffs had been put. However, the defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry. The opposite has proved true in the publishing sphere in this and other countries – with sad consequences for those who lost employment as a result of untoward awards. Further unjustifiably large awards, as well as the cost attendant on long trials deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.”
It is the case that an award of damages must be fair to the plaintiff and to the defendant. That cannot be gainsaid. However, freedom of expression is not an entirely unrestricted freedom. In the context of defamation proceedings it must be balanced by the provisions of Article 40.3.2 of the Constitution which provides that the State “shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”. The matter was expressed trenchantly by Hamilton C.J. in the de Rossa case when he said at page 456:
      “Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person.”
Nevertheless it was accepted by Hamilton C.J. in that case in a passage referred to previously in the course of this judgment that the existence of the right of freedom of expression and the obligation on the State by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the good name of every citizen necessarily involves what Hamilton C.J. described as “a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name”. It is from that balancing exercise that he identified the concept of proportionality. Accordingly, I am satisfied that an award of damages cannot be so disproportionate as to have the effect of not just vindicating the good name of the citizen but of restricting the freedom of expression of a newspaper.

Damages
The award of damages in this case in the sum of €1, 872,000 is a very large award by any standard. The defamation in this case consisted of a series of articles over a period of two and a half weeks which impugned the character of Ms. Leech in every aspect of her life. It is clear that the effect of the defamation in this case was considerable. It appears to have had a real and long lasting impact on her professional life. Her contracts were not renewed and the business which she had just set up with another individual collapsed almost as soon as it had begun. The defamation also impacted on the life of her family to an extent that must have increased the stress and personal hurt felt by Ms. Leech. The extent of the loss in terms of her business life was never quantified and there was no claim in respect of special damages but, of course, it would be open to a jury to include in an award of general damages an element of damages in respect of loss of business opportunity. Overall, I am satisfied that the defamation in this case was a very serious defamation. Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale. A somewhat unusual feature of this case was the sustained campaign in the Evening Herald in respect of Ms. Leech The consequences of it affected her in her day to day life, personally and in her business life. Her newly launched business was destroyed before it could become established. I have no doubt that from her point of view it was a very serious matter. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts, such as that in the de Rossa case. That said, the award made to Ms. Leech in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.

I am conscious of the firm instructions of Ms. Leech to her legal representatives that in the event that this Court came to the conclusion that the amount of the award was excessive that the Court should in those circumstances remit the matter to the High Court for assessment by a jury again. Whilst I understand those to be her instructions I am satisfied that in the context of this case it would be desirable for all parties to bring an end to the litigation between the parties and in those circumstances it seems to me that the approach to be taken by the Court should be to set aside the verdict of the jury on damages and to substitute a sum in the figure of €1,250,000 for damages.

In the circumstances it is not necessary to address the argument made on behalf of the Newspaper as to the correctness or otherwise of the order made by the learned trial judge directing the payment out of the sum of €750,000 by way of damages and the sum of €100,000 by way of costs on an interim basis pending the appeal.

Accordingly, I would allow the appeal of the Newspaper and would substitute the sum of €1,250,000 by way of damages for the sum awarded by the jury in this case.






Back to top of document