Privilege
Cases
Hynes-O’Sullivan v. O’Driscoll
[1988] I.R. 436
Finlay C.J.
This is an appeal brought by the plaintiff against the dismiss of her claim for damages in the High Court. The plaintiff is a consultant psychiatrist holding appointments from the Southern Health Board and also engaged in private practice in Cork. The defendant is a solicitor practising in Cork. In May, 1982, the defendant was retained to act for the husband in matrimonial proceedings which were to be held in the High Court in Dublin. He was satisfied that the plaintiff was a necessary and relevant witness to give evidence on behalf of the husband with regard to examinations she had made of the wife some years previously. The defendant had before this occasion neither met nor had professional dealings with the plaintiff. At the defendant’s request his client spoke to the plaintiff about attending as a witness and she requested that the defendant should contact her. Two telephone conversations then took place between the plaintiff and the defendant as a result of which the plaintiff indicated that she was not prepared to travel to Dublin to give evidence in the case. The defendant caused a subpoena ad testificandum accompanied by a viaticum of £20 to be served on the plaintiff and she did attend in Dublin at the family law court on the morning of Tuesday, the 11th May, 1982, the date fixed for the commencement of the hearing of the case. The case was settled after luncheon time without having commenced, and the plaintiff was informed of this by the defendant and returned home. Approximately a week later the plaintiff submitted to the defendant an account of her fees for attending court as a witness, in the sum of £300. The defendant wrote in reply seeking a breakdown of this figure, and to that request there was no response to him from the plaintiff.
On the 3rd June, 1982, the plaintiff wrote to the Incorporated Law Society enquiring as to whether the Society had laid down any guidelines with regard to the issuing of subpoenas to professional people so as to enforce their attendance at court at extremely short notice. In that letter she set out her version of her dealings with the defendant and complained that the defendant had acted in a reprehensible fashion to cause her such harassment. She also sought the help of the Society in obtaining her fees, stating that the seeking by the defendant of a breakdown of them was a further insult to her professional integrity. The Law Society sent a copy of this letter to the defendant and asked him for his comments on it.
On the 24th June, 1982, the defendant wrote a lengthy letter to the Law Society commenting on the letter which the plaintiff had written and giving his version of the events leading to her attendance in court as a witness. In the course of that letter the defendant accused the plaintiff of duplicity and described her as a person “who holds scant regard for professional ethics and even less for the solemnity of the law.” He stated that when he informed the plaintiff that he would be obliged to serve a subpoena upon her to secure her attendance at court on behalf of his client, she replied that if he did she could send him a “sick note.”He also stated that she attempted to avoid service of the subpoena and that she was obsessed with the payment of her fees.
On the 25th June, 1982, the defendant sent a copy of this letter to the secretary of the Irish Medical Association (“the I.M.A.”) with a covering letter making a formal complaint against the plaintiff:
(1) of a willingness alone or in conspiracy with other members of the medical profession to falsify a medical certificate on her behalf;
(2) of a lack of integrity demonstrated in the misleading complaint she made to the Law Society against the defendant; and
(3) of demanding exorbitant fees and expenses for a court appearance.
The secretary of the I.M.A. acknowedged that letter and stated that his Association had no function in relation to such complaints, which were a matter for the Medical Council.
The defendant on the 13th July, 1982, wrote to the secretary of the Medical Council in terms identical to those contained in his letter to the secretary of the I.M.A. and enclosed a copy of his letter of the 24th June, 1982, to the Law Society. The Medical Council sought the observations of the plaintiff upon the complaint made by the defendant and, having considered them, took no action on the complaints.
On the 5th June, 1985, the solicitors for the plaintiff wrote to the defendant claiming an apology, compensation and the payment of costs. In a portion of this letter the claim appeared to be for an apology and costs only. This request was repeated but no reply was made by the defendant to any of the letters. These proceedings were then instituted.
The plaintiff claims damages for libel in respect of (1) the letter written to the Law Society; (2) the letters written and sent to the I.M.A.; and (3) the letters written and sent to the Medical Council. The defendant in his defence, in addition to certain denials, pleaded that the letters complained of were all written without malice on occasions of qualified privilege and furthermore pleaded justification of the allegations (a) that the plaintiff threatened, if served with a subpoena, to send a sick note; (b) that the plaintiff made a misleading complaint to the Law Society; and (c) that the plaintiff demanded for appearance in the High Court fees that were exorbitant.
The action was tried in the High Court by a judge sitting with a jury. At the conclusion of the evidence for the plaintiff an application was made by the defendant to withdraw the case from the jury. The learned trial judge then ruled that while he was satisfied that it had been established that the writing of the letter to the Law Society and to the Medical Council were each occasions of qualified privilege, since it had not been established that the plaintiff was a member of the I.M.A., he (the judge) could not hold that the sending of the letters to that body was an occasion of qualified privilege unless the defendant in evidence established that he had an honest belief that the I.M.A. was the appropriate body to which to make a complaint concerning the conduct of the plaintiff. Accordingly, he decided that the defendant had a case to meet.
Upon the conclusion of the evidence for the defendant the application for a dismiss was renewed. The learned trial judge then ruled that the defendant had an honest belief that the I.M.A. was the appropriate body and that accordingly all the letters were published on occasions of qualified privilege. He further ruled that there was no evidence in respect of any of the letters complained of, which a jury could infer was more probably consistent with malice than otherwise, and that accordingly the case must be dismissed. Against these findings and this order the plaintiff appealed to this Court on a number of different grounds.
The submissions made on behalf of the plaintiff in the course of the appeal can, however, be summarised under the following broad headings.
1. In the absence of proof by the defendant of an actual interest in the I.M.A. in receiving the complaint, no occasion of qualified privilege exists in respect of the letters sent to that body; honest belief by the person publishing the statements complained of being incapable in law of creating such privilege.
2. The claim concerning the letters sent to the I.M.A. should therefore have been left to the jury, subject only to the defences of denial and justification.
3. In ruling on the issue of malice the learned trial judge erred in law in that having considered a number of alleged separate instances of malice, he concluded that there was no case to be left to the jury because the plaintiff had failed to prove the probability of malice in more instances than she had succeeded in so proving.
4. That even if the learned trial judge applied the correct test to the issue of malice to be left to the jury, he erred in concluding that it had not been established in one or more particulars as a probability which should have been left for their consideration.
On behalf of the defendant it was contended:
1. That on the admitted and uncontroverted evidence the defendant’s plea of justification had succeeded and, even though that was not the basis on which the case was dismissed in the High Court, this Court should, if satisfied that that was the legal position, dismiss the appeal.
2. That the proper test in law which should be applied to the defence of qualified privilege in respect of publication to the I.M.A., was that if it were established to the satisfaction of the learned trial judge that the defendant had an honest belief in the fact that this was a body with an interest in receiving the complaint and that if he had taken reasonable care in all the circumstances of the case in arriving at that belief, in law the occasion was the subject of qualified privilege.
3. In the alternative, that proof of the fact that fees due to the plaintiff were paid by the defendant’s client through the medium of the I.M.A. was sufficient proof of an interest in that body in receiving a complaint at least with regard to the charging of exorbitant fees.
4. That none of the items of evidence relied upon by the plaintiff as proof of malice, either viewed individually or collectively, constituted evidence more consistent with malice than otherwise.
In respect of the issues raised by these submissions I have come to the following conclusions.
Plea of justification
The plaintiff made the following admissions in evidence relevant to this issue:
(a) That when the defendant stated that he would be obliged to have a subpoena served upon her she said she would send him a sick certificate.
(b) That when a person came to serve a subpoena on her in her consulting rooms she heard the receptionist stating that she (the plaintiff) was not in, although she was standing in an adjoining corridor and was aware of the purpose of the visitor, namely, to seek; to serve a subpoena: she did not correct her receptionist.
(c) That she did not pay a consultant any fees to carry out her duties on the occasion of her absence from Cork to attend the High Court in Dublin.
I am not satisfied that these admissions necessarily constitute conclusive evidence justifying all the charges made in the correspondence against the plaintiff. They are, in my view, capable of being accepted by a jury as such justification or capable of being accepted as failing to justify the charges made. I therefore conclude that there are no grounds upon which this Court could decide this appeal on the issue of justification.
Qualified privilege in respect of the letters to the I.M.A.
There does not appear to be any direct Irish authority on the question as to whether an occasion of qualified privilege can arise where there is not actually an interest or duty in the person to whom a matter is published, although the person making the publication honestly believes that there is. In Waring v. McCaldin (1873) I.R. 7 C.L. 282 FitzGerald B. at p. 288 in the course of a ruling on a plea of demurrer stated as follows:
“If, without express malice, I make a defamatory charge, which I bona fidebelieve to be true, against one whose conduct in the respect defamed has caused me injury, to one whose duty it is, or whose duty I reasonably believe it to be, to inquire into and redress such injury, the occasion is privileged, because I have an interest in the subject matter of my charge, and the person to whom I make the communication has, on hearing the communication, a duty to discharge in respect of it.”
A consideration of the report of the entire proceedings in that case clearly indicates that the statement which I have quoted from the judgment of FitzGerald B., in so far as it dealt with reasonable belief, was obiter to the issues arising for decision.
In Jenoure v. Delmège [1891] A.C. 73 which was an appeal to the Judicial Committee of the Privy Council from the Supreme Court of Jamaica, Lord Macnaghten at p. 77 stated as follows:
“The Chief Justice went on to tell the jury that the proper authority to whom such a complaint should have been submitted was the superintending medical officer; but he also told them that, if they thought that the appellant had addressed the letter to the inspector of constabulary by an honest unintentional mistake as to the proper authority to deal with the complaint, then the communication would not be deprived of any privilege to which it would have been entitled had it been addressed to the superintending medical officer. So far the summing-up seems to be open to no objection.”
The case in which this statement occurs was one in which the point on appeal before the Privy Council concerned an alleged misdirection by the Chief Justice of Jamaica to a jury on the question of privilege.
In Hebditch v. MacIlwaine [1894] 2 Q.B. 54 the Court of Appeal in England decided that it was not sufficient that the maker of a statement honestly and reasonably believes that the person to whom it is made has an interest or duty to receive it in order to create an occasion of qualified privilege but that the actual existence of such duty or interest must be proved. This decision has since been followed in England and is quoted with approval in successive editions of Gatley on Libel and Slander being referred to at para. 507 of the 7th edition. It was referred to by Black J. in a judgment which dissented on other issues in Kirkwood Hacken v. Tierney [1952] I.R. 185. The principle that in order to establish an occasion of qualified privilege it is necessary to prove the actual existence of a duty or interest in the person to whom the statement is communicated was clearly accepted by the former Supreme Court in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 as well as in Kirkwood Hackett v. Tierney .
There does not appear to have been raised in any case before this Court or before the former Supreme Court the question as to whether an occasion of qualified privilege could also be established by proof of an honest belief in the person publishing the statement formed with reasonable care as to the interest or duty of the person to whom he communicates. In the decision of the House of Lords in London Association for Protection of Trade v. Greenlands Limited [1916] 2 A.C. 15 it was decided that upon an enquiry being made to a person as to the financial circumstances and credit of a trader, that person is justified in giving such information and is deemed in law to do so on an occasion of qualified privilege provided that (1) he bona fide believes in the truth of the information which he gives, and (2) he bona fide believes that the person making the enquiry has an interest which justifies the enquiry. I am not aware of this decision having been considered by any Irish court. If it were possible and desirable to extend the principle laid down in London Association for Protection of Trade v. Greenlands Limited to circumstances other than the credit of traders and even, as is urged in this case, to circumstances where an enquiry is not made, it would quite clearly be fundamental to any principle so developed that a person volunteering such a statement would take the utmost care in ascertaining as to whether the person to whom he was communicating it had an interest or duty to receive it.
In the instant case the defendant, a solicitor, before writing to the I.M.A. took, on his own evidence, no step of any description to ascertain whether they were the appropriate body to which a complaint with regard to misconduct on the part of a doctor should be made. It is quite clear that either a reference by him to the Medical Practitioners’ Act, 1978, or an enquiry made without involving the mentioning of any name to the I.M.A. itself as to whether they were the appropriate body, would have yielded the immediate information that the appropriate body to whom such a communication should be made was the Medical Council. In these circumstances, I am satisfied that even if a defence of qualified privilege can be established in the manner submitted on this appeal by the defendant, that on the facts of this case it could not conceivably arise, and I prefer not, in those circumstances, to express any view as to whether it is part of the law, or, if it is, the circumstances which would give rise to it.
Having regard to the consequences of the publication of such information I take the view that a mere honest belief in the appropriateness of the recipient is not sufficient under any circumstances to create privilege and since the decision of the learned trial judge that the publication to the I.M.A. was privileged seems to have rested upon that principle, it was, in my view, in error.
With regard to the submission made on behalf of the defendant, that the receipt by the I.M.A. from the defendant’s client of the fees due to the plaintiff which it transferred to her was proof of an actual duty or interest in the I.M.A. to receive these letters, I am satisfied it must fail. The only evidence of the circumstances surrounding this payment was the production of a bank draft, apparently endorsed by the I.M.A. and cashed by the plaintiff. Such evidence falls very far short indeed of the onus of proof which was upon the defendant of proving a relevant duty or interest in the I.M.A. to receive the communication concerned.
I am, therefore, satisfied that the publication of these letters to the I.M.A. should have been left to the jury without any issue on the question of malice concerning it.
Rulings on malice
I am satisfied that, although there are some difficulties in accurately understanding from the transcript of the trial what precisely was said by the learned trial judge in his ruling, there are no grounds for the submission made on behalf of the plaintiff, to the effect that the learned trial judge’s ruling on malice should be interpreted as a consideration of each separate item of evidence alleged by the plaintiff to constitute evidence of malice and a ruling that the matter should not be left to the jury because in more instances the plaintiff had failed to establish a probability of malice than in the instances in which she succeeded. The first submission made with regard to the issue of malice on behalf of the plaintiff must therefore fail.
With regard to the more general submission, the position would appear to me to be as follows. It was agreed by counsel for both the plaintiff and defendant in this case that the appropriate test for malice was that laid down in the judgment of O’Byrne J. in the former Supreme Court in the case of Kirkwood Hackett v. Tierney [1952] I.R. 185. This, firstly, was that a trial judge should leave an issue of malice to the jury only if he was satisfied that the evidence given was more consistent with the existence of malice than with its absence, or to put the matter in another but identical way, that the existence of malice, as a matter of probability, was an inference which the jury would be entitled to draw from the evidence given. Secondly, that judgment appears to establish that, as was stated by O’Byrne J. at p. 204, having recited the principle laid down by Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449:
“Applying the foregoing principle, which I consider to be sound in law, it is clear that you cannot get evidence of malice from a number of items of evidence, no one of which is, in itself, evidence of malice.”
I do not construe this second proposition as prohibiting a trial judge from having regard to different pieces of evidence which appear to him to be interrelated so as to reach a conclusion as to whether the evidence supports the probability of malice in the manner which I have indicated above. Rather do I construe it as simply laying down a principle which may indeed be of more general application than merely to the question of a judge’s ruling concerning malice, that a number of separate items of evidence establishing a mere possibility of the existence of malice cannot by reason of their multiplicity alone convert that mere possibility into a probability.
In the instant case the plaintiff relied in the court below and relies in this appeal on a number of separate portions of the evidence as constituting evidence of the probability of malice. Some of those may well be capable of being considered interrelated. The main matters upon which reliance was placed may be summarised as follows.
1. Delay on the defendant’s part in making any complaint to anybody concerning the plaintiff’s conduct until such time as the plaintiff had herself made a complaint with regard to the defendant to the Law Society.
2. The length and scope of the defendant’s letter to the Law Society which it is alleged was so far outside necessary or relevant comment on the matters contained in the plaintiff’s letter to the Law Society as to constitute evidence of a motive of revenge or retaliation rather than a motive of a duty to make the complaint concerned.
3. The violence of some of the language used in the letter, particular complaint being made of the allegation that the plaintiff was a person who held scant regard for professional ethics and even less for the solemnity of the law; that she was obsessed with her fees and that she was guilty of duplicity and a lack of integrity in the contents of her letter written to the Law Society.
4. It was asserted that the reference in the letter to the Law Society setting out the history of the family law case giving rise to the request to the plaintiff to give evidence could be construed as a slur on the plaintiff’s professional competence in that it could be construed as indicating that the unfortunate history of the wife in the family law case was due to inappropriate advice or treatment.
5. The failure of the defendant upon request to comply with the demand made on behalf of the plaintiff prior to action for an apology, compensation and the payment of costs or even for an apology and the payment of costs.
6. The plaintiff also relied on the fact that copies of the correspondence sent to the Law Society, to the I.M.A. and to the Medical Council were sent by the defendant to the plaintiff as indicating some element of spite or hostility towards her from him.
With regard to these various allegations of malice I have come to the conclusion that the learned trial judge erred in law in holding that it would not have been open to a jury to reach a conclusion that the probability of the existence of malice in the communications made by the defendant was established by the length and scope of the letter written by him to the Law Society, having regard to the matters on which that Society asked for his comments and the violence of some of the language used in that letter. In reaching this view I am, of course, expressing no opinion as to whether I would accept from all the facts of this case that malice was proved, but rather expressing a view on the legal question which fell to be determined by the learned trial judge as to whether the probability of malice was an inference open to the jury on the evidence which was given.
It is quite clear that the failure or refusal of the defendant to apologise and pay costs, with or without compensation, could not be evidence of malice, having regard to the defence which he subsequently filed in the proceedings of justification. I do not construe the portion of the letter dealing with the history of the treatment by the plaintiff of the wife in the family law case as containing an implication that that treatment was incompetent or negligent, and I do not consider that this was an item of malice which should have been left to a jury. The sending by the defendant of copies of the letters to the plaintiff could not be evidence of malice. Quite clearly the fact that the defendant made no complaint concerning the conduct of the plaintiff until such time as she made a complaint to the Law Society is inter-related with the alleged violence of language contained in his letter to the Society and can be considered with it.
Having regard to the conclusions set out by me in this judgment I am satisfied that this appeal should be allowed and that a new trial of this action should be ordered in accordance with the principles which I have set out in this judgment.
Henchy J.
The plaintiff is a consultant psychiatrist practising in Cork. The defendant is a Cork solicitor. In 1982 the defendant, who was acting as solicitor for the husband in family law proceedings in the High Court, served a subpoena on the plaintiff requiring her to attend the hearing of the case in Dublin and to give evidence for the husband. She attended but was not called as a witness, as the case was settled. When she returned to Cork she sent the plaintiff a bill for £300 in respect of her fees. The defendant’s reply was to ask for a breakdown of that sum. There is no evidence that he took any step to provide for her fees. The plaintiff, feeling aggrieved, wrote to the Incorporated Law Society on the 3rd June, 1982, enquiring if there were any guidelines as to subpoenas served on professional people, complaining of the defendant’s conduct and asking for the Society’s help in recovering her fees.
The Law Society having sent him a copy of this letter, the defendant wrote a long letter to the Society on the 24th June, 1982, giving his version of events, attacking the plaintiff for her “scant regard for professional ethics and even less for the solemnity of the law”, accusing her of threatening to give him a “sick note”if he served a subpoena on her, and complaining that she was obsessed with the payment of her fees.
On the following day the defendant sent a copy of that letter to the Irish Medical Association (“the I.M.A.”) with a covering letter in which he made a formal complaint against the plaintiff, alleging unethical conduct in regard to the”sick note”, lack of integrity as evidenced by her letter to the Law Society, and professional impropriety in that she had demanded exorbitant fees. The secretary to the I.M.A. wrote in reply saying that the I.M.A. had no jurisdiction in the matter and that a complaint such as his was for the Medical Council. The defendant then wrote to the Medical Council repeating the complaints he had made in his letter to the I.M.A. and enclosing a copy of his letter to the Law Society.
The present proceedings have been brought claiming damages for libel against the defendant in respect of (1) the letter he wrote to the Law Society, (2) the letter he wrote to the I.M.A. enclosing a copy of his letter to the Law Society, and (3) the letter he wrote to the Medical Council enclosing a copy of his letter to the Law Society. At the end of the hearing in the High Court the judge withdrew the case from the jury and entered judgment for the defendant. The plaintiff now appeals.
The defendant pleaded justification, but the question of justification does not arise in this appeal. We are concerned only with the question whether the judge correctly ruled that all three occasions of publication were occasions of qualified privilege and that the plaintiff had failed to show that it would be open to the jury to hold that, on the balance of probabilities, the defendant was actuated by malice and had therefore lost the benefit of the qualified privilege.
On the hearing of the appeal it appeared that the parties were agreed that the occasions of the sending of the letter to the Law Society and the sending of the letters to the Medical Council were occasions of qualified privilege. It is common case that the defendant had a right or duty to send those communications and that the Law Society and the Medical Council had a reciprocal duty or interest in receiving them. The only question, therefore, arising in this appeal, in regard to those two communications, is whether there was evidence of malice which was fit to be considered by the jury.
The third communication, namely that sent to the I.M.A., is in a different position. The parties are not agreed that this was a privileged occasion. Counsel for the plaintiff relies on the long-established general rule that an occasion of qualified privilege cannot exist unless the person receiving the communication has in fact a legitimate duty or interest in connection with the subject-matter, and he says that no such duty or interest on the part of the I.M.A. existed here. Counsel for the defendant submitted in reply that the I.M.A. was not without an interest in the complaint made, and that even if it had no interest, the occasion was still one of qualified privilege because the defendant honestly and reasonably believed that the I.M.A. had such an interest.
I am satisfied that the I.M.A. had no legitimate interest in receiving this communication from the defendant. The purpose of the communication was to instigate a disciplinary inquiry by the I.M.A. into the serious matters complained of. But the I.M.A. had no jurisdiction to hold such an inquiry. Such limited powers as it had were exercisable only in respect of its members, and the plaintiff was not even a member. The secretary to the I.M.A. replied to the defendant’s complaint by saying, quite correctly, that it was a matter for the Medical Council. Had the defendant consulted the Medical Practitioners Act, 1978, or made the appropriate inquiries, he would have known that to be so. He imprudently and without due consideration made his complaint to a body which had no legitimate interest in the subject-matter of the complaint. His counsel was driven to falling back on the fact that the I.M.A. eventually sent the plaintiff a cheque in discharge of her fees for attending court, thus, it was suggested, pointing to its interest in the matter. I am satisfied, however, that this cheque was only a method of payment of the fees and that it cannot be treated as vesting in the I.M.A. an interest or duty which even the I.M.A. itself admitted it had not got.
In those circumstances this Court is being asked to hold that the communication sent by the defendant to the I.M.A. is protected by qualified privilege because, although the I.M.A. in fact had no duty or interest in the matter, the defendant honestly and reasonably believed that it had. However, such a version of the law would run counter to two Supreme Court decisions: Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185. While the point does not seem to have been specifically argued in those cases, it is clear from the observations made in the judgments that the Court in each of those decisions was firmly of the opinion that an occasion of qualified privilege cannot exist unless the person making the communication has a duty or interest to make it and the person to whom it is made has a corresponding duty or interest to receive it. It would require exceptional circumstances before this Court should overrule such a clearly held and repeatedly expressed opinion.
I have no difficulty in rejecting the submission, which has only slender judicial support, that the occasion is one of qualified privilege if the person making the communication honestly believes that the person receiving the communication has a duty or interest in receiving it. I cannot believe that the guarantee in Article 40, s. 1, sub-s. 3 of the Constitution that the State will protect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen, would be effectuated if a right to defame with impunity is recognized on such a purely subjective basis. An occasion of qualified privilege is to be given recognition only to the extent that it is necessary under Article 40, s. 6, sub-s. 1 to recognize, on an objective basis, the right to express freely convictions and opinions. The constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication. The constitutional right to one’s reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the person to whom the words were published had a right to receive the communication.
I consider, therefore, that the only part of the defendant’s submission which warrants serious consideration is the contention that a defendant is entitled to the defence of qualified privilege if he honestly and reasonably believed that the person to whom he published the words complained of had a duty or interest as to the matters referred to in the communication.
Despite the obvious attractiveness of the suggested formulation of the law of qualified privilege, I am not prepared to support the overruling of Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185 to the extent required by the defendant’s submission. In the first place, I am not satisfied that the proposed formulation would be correct for the generality of cases of qualified privilege. Occasions of qualified privilege arise in a wide variety ofrelationships – legal, social and moral – and in an extensive range of circumstances, and the single formulation suggested might not be suitable for all of those occasions. For example, even the existing general rule, that it is necessary for qualified privilege that the recipient of the communication have a duty or interest in regard to the communication, is waived in certain cases where the communication is made by a person replying to an inquiry as to the credit of another: see London Association for Protection of Trade v. Greenlands Limited [1916] 2 A.C. 15, 42. It may be that many other exceptions or qualifications are called for. The general rule suggested may prove to be unsuitable or unjust in certain cases. I am not persuaded that it would necessarily he an improvement on the present formulation in many cases.
Secondly, I consider that a previous decision of this Court, be it the Court established by the Courts (Establishment and Constitution) Act, 1961, or the Court in its earlier form, should not be overruled unless the point at issue has been duly raised and adequately argued. The formulation now suggested was first advanced to this Court by counsel for the defendant when replying to the submissions of counsel for the plaintiff. The latter did not find it necessary to deal with this point, relying as he was on the law as stated in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185. The result is that we are being asked to overrule part of those decisions, on what has turned out to be an ex parte argument. I find that unsatisfactory, particularly having regard to the possible but unknown ramifications of the suggested change in the law.
Thirdly, I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernible in the tunnelled vision imposed by the facts of a single case. That is particularly so in a case such as this, where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature.
Finally and perhaps most crucially, the suggested restatement of the law should in my opinion not be made in this case because it is not necessary for the purpose of doing justice. If the suggested version of the law were to be applied, the test as to whether the defendant’s communication to the I.M.A. was made on a privileged occasion would be whether he honestly and reasonably believed that the I.M.A. had jurisdiction to deal with his complaint. I do not doubt that he acted honestly, but I am equally satisfied that he did not act reasonably in making that communication. A reasonable solicitor of eleven years standing (which was the span of his experience) would not have sent a letter of complaint to the I.M.A. alleging serious professional misconduct by a doctor, without taking at least some precautions to ensure that the I.M.A. was the appropriate body to deal with the complaint. Yet he seems not to have taken any step to verify his impression that the I.M.A. had competence in the matter. A belief so casually and carelessly founded could not be held to be reasonable. Consequently, even if the suggested test were to be applied, it would avail the defendant nothing. The occasion would still have to be held not to have been privileged. If the law as to qualified privilege as stated in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185 were to be overruled, it would be of no consequence for the purpose of this case. As was stated by this Court in Mogul of Ireland v. Tipperary (N.R.) C.C. [1976] I.R. 260 an overruling of a previous decision of this Court, whether it be the pre-1961 Act or the post-1961 Act Court, should take place only when it is necessary for the purpose of doing justice. That requirement is absent in this case. Even if the Court were to restate the law as requested, such restatement would be only obiter.
I would hold, as regards the communication to the I.M.A., that the trial judge incorrectly ruled that it was made on a privileged occasion. The case should have gone to the jury to determine whether the two letters in question (or any part of them) were defamatory, to decide to what extent (if any) the plea of justification had succeeded, and, if required by the findings on those matters, to assess damages.
As to the communications to the Law Society and the Medical Council, those were clearly made on occasions of qualified privilege. However, the trial judge held that the evidence was such that it would not be open to the jury to hold as a matter of probability that the defendant was actuated by malice. Being therefore of the opinion that the plea of qualified privilege prevailed, he withdrew the case from the jury. I think that was an incorrect ruling. It is well established that the defence of qualified privilege will be defeated if it is shown by the plaintiff as a matter of probability that the defendant, in communicating the words complained of, acted out of what is known in law as malice. Malice in that sense will be shown if the defendant acted from any indirect or improper motive, not merely personal spite or ill-will, which shows that the reason for which the occasion is recognized as privileged has been exceeded or violated.
When a libel or slander action is tried with a jury it is for the judge to decide whether the evidence is such as would reasonably entitle the jury to hold, as a matter of probability, that the publication was actuated by malice, in the legal sense, on the part of the defendant. Where the plaintiff, on whom the onus of proving malice lies, points to a number of examples of malice in regard to the publication, the judge must allow the case to go to the jury if it would be reasonable for the jury to hold as a matter of probability that any one of those instances represents malice. However, if no one of the instances pointed to could reasonably be held by the jury to amount to malice, the case should be withdrawn from the jury, because it would not be open to the jury to hold that a number of instances, no one of which could in itself be held to evidence malice, could in their aggregate amount to malice. The law to that effect was stated by Lord Porter in Turner v. Metro-Goldwyn-Meyer Pictures Ltd. [1950] 1 All E.R. 449, 455:
“. . . each piece of evidence must be regarded separately, and, even if there are a number of instances where a favourable attitude is shown, one case tending to establish malice would be sufficient evidence on which a jury could find for the plaintiff. Nevertheless, each particular instance of alleged malice must be carefully analysed, and, if the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances.”
I respectfully adopt that statement of the law, which has been applied in a number of subsequent English cases and which was expressly approved by O’Byrne J. in Kirkwood Hackett v. Tierney [1952] I.R. 185. Since the judgment of O’Byrne J. was the effective judgment of the Court in that case, even if I disagreed with that version of the law I would not be free to refuse to follow it. Thus, if no one of the examples of malice relied on by the plaintiff in this case could reasonably have been held by the jury on the balance of probabilities to amount to malice, the judge would have been correct in withdrawing the case from the jury. On the other hand, if any one example could reasonably as a matter of probability be treated by the jury as showing malice, the case should have been allowed to go to the jury.
In my view the judge wrongly withdrew the case from the jury. There were a number of matters which a properly directed jury could justifiably have held to amount to malice. Without going into detail, I would point to the timing, the tone and the contents of the letters, the nature of the language used, the range and breadth of the complaints, and the fact that what began as a defence to a complaint made about the defendant to the Law Society was converted by him into an attempt to establish professional misconduct on the part of the plaintiff. I refrain from going into specific instances, for their weight depends in one degree or another on the actual evidence given at the trial, and since in my view there must be a new trial, in which the evidence may be appreciably different, any comments as to the import of the evidence already given may be misleading in the context of the new trial.
Since it is my opinion that there was a case to go to the jury as to each of the three communications, I would allow this appeal and order a new trial.
Griffin J.
I agree with the judgment of the Chief Justice.
Hederman J.
I agree with the judgment of Henchy J.
McCarthy J.
The trial judge ruled that each occasion upon which the defendant wrote the impugned letters was one of qualified privilege and that it was not open to the jury reasonably to conclude that the evidence was more consistent with express malice than otherwise. It is not seriously in issue that the occasion of the letter to the Incorporated Law Society of Ireland and that of the letter to the Medical Council was in each instance an occasion of qualified privilege. The challenge by the plaintiff is to the ruling that since the defendant had an honest belief that the Irish Medical Association (“the I.M.A.”) had an interest in receiving the letter, the occasion of that publication was also one of qualified privilege, and, further, that there was no evidence upon which a jury could reasonably conclude upon the balance of probabilities that the defendant was actuated by an improper or ulterior motive amounting in law to express malice. In my judgment, both of the plaintiff’s contentions are correct.
1. The letter to the I.M.A.
It was for the defendant to prove, if it were not admitted, the fact or facts that would establish the occasion to be one of qualified privilege. There was no satisfactory evidence that at the time of the writing of the letter the plaintiff was a member of the I.M.A.: the only hard evidence of the role of the I.M.A. was in the production of the by-laws of that association and these do not assist. There was no evidence that the I.M.A. had either a duty or an interest in hearing complaints of the kind contained in the letter written by the defendant and the accompanying copy letter written to the Law Society. On an empirical test, it seems unlikely that the I.M.A. had an interest in receiving such a letter since it, with its enclosures, was returned by the I.M.A. to the defendant saying that it “was not our affair” and that the appropriate body for such a complaint was the Irish Medical Council. The learned trial judge, at the close of the plaintiff’s case, refused the defendant’s application for a ruling that the occasion of the letter to the I.M.A. was one of qualified privilege; the defendant served notice of cross appeal in which he challenged that ruling, contending that the I.M.A. was, on the evidence, the correct body to receive such a letter, in particular, in respect of the fee complaint, since subsequently the fee was paid by the husband/client through the I.M.A. The alternative argument, and the one upon which greater reliance appears to be place, was that of “honest belief reasonably held”.
In the legal mine field that is the law of defamation, the most sensitive trip wires are those of privilege. There is an abundance of judicial pronouncement on what may be the occasion of qualified privilege, with apparent unanimity that the limits are never set. The defence of qualified privilege is founded upon the needs of the common good whether in the home, the factory, the shop, the houses of finance, or voluntary associations with professional or other purposes. The common good presupposes a common factor, a reciprocal duty or interest in making and receiving the communications. For this reason, it is the judge at trial who rules, on proven or agreed facts, whether or not the occasion is one of qualified privilege. If the facts are in issue, he cannot so rule until the facts are found by the tribunal of fact, the jury. If there is any want of evidence to support the facts essential to the legal conclusion, then such a conclusion is not open. The conclusion itself is one of law based upon an objective test of such reciprocal duty or interest arising, if it does at all, from the instant relationship of the two parties to the communication. (See: Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185). In my view, the learned trial judge correctly ruled that it had not been shown that the I.M.A. had an interest in receiving the communication in question.
“Honest belief”. It is an attractive proposition that an individual who holds a belief, which is both honest and reasonable, that the party to whom he makes a complaint has an interest in receiving that complaint, in law does so upon an occasion of qualified privilege. The public interest, it is said, is at stake and is served in allowing people to act on such honest and reasonable belief. The argument seems to me to suffer from one fatal defect, it overlooks the situation of the party defamed. He has a constitutional right that the State shall protect as best it may from unjust attack and in the case of injustice done vindicate his good name (Article 40, s. 3, sub-s. 2 of the Constitution). Such a right co-exists with a guarantee of liberty for the exercise of the right of citizens to express freely their convictions and opinion (Article 40, s. 6, sub-section 1). The defence of qualified privilege is itself an impairment in the interests of the common good of the right to vindication of one’s good name. This does not mean that it should be sparingly allowed but, rather, that its existence should be clear, and clear to all parties. The victim of a letter of complaint, plainly defamatory if not necessarily actionable, should not have the determination of his course of action depend upon a circumstance, the honest and reasonable belief of the publisher, which he has no means of examining or testing unless and until he goes to court. The recipient of an enquiry as to the character of a prospective employee may answer the query in a manner which is defamatory but upon an occasion of qualified privilege without fear of being mulcted in damages. But the victim of the complaint in such case can readily learn the facts and, if a letter of enquiry was, itself, false in its base, may well have a remedy against its author. It is desirable that an individual acting in good faith and with reasonable care should be free from liability if he publishes defamatory material to another whom he believes to have an interest in hearing it. It is more than desirable, in my view, that the existence of such immunity should be seen and determined objectively without having to have an examination in court. In principle, I do not find support for what in this jurisdiction would be a departure from existing practice. In short, an occasion of qualified privilege is a legal conclusion to be drawn from established facts; a mistaken belief cannot be the foundation to establish a fact. It is, therefore, contrary to principle that such a defence could be supported by a belief which is mistaken, however honest and reasonable.
It is acknowleged that the perceived legal precedent in England and Scotland is directly contrary to any such enlargement of the law. See: Beach v. Freeson [1972] 1 Q.B. 14; Hebditch v. MacIlwaine (1894) 2 Q.B. 54; Watt v. Longsdon (1930) 1 K.B. 130; Adam v. Ward [1917] A.C. 309; Harrison v. Bush (1855) 5 E. and B. 344; Stuart v. Bell [1891] 2 Q.B. 341; Jenoure v. Delmège [1891] A.C. 73; James v. Baird (1916) S.C. 510 and sub nom. Baird v. Wallace-James (1916) S.C. (H.L.) 158. The point was not argued in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 or in Kirkwood Hackett v. Tierney [1952] I.R. 185. Counsel for the defendant has argued a consideration of Australian and United States academic authorities in support of the “honest belief” defence for what may well be though ought to be the law (Fleming: Law of Torts, at p. 454; 2nd Restatement of Torts 594, 595. Prosser: Law of Torts, p. 792). It would not, he argues, constitute a change in the essential law of qualified privilege. Honest belief may well sound in the diminution of damages. Under the Defamation Act, 1961, the damages to be awarded in respect of an unintentional defamatory publication may be diminished by proof of no negligence; a like approach might be appropriate to the circumstances such as found by the learned trial judge here, but that touches only on damages and would be met by appropriate direction to a jury.
For the reasons I have sought to indicate, in my view the occasion of the letter to the I.M.A. was not one of qualified privilege.
2. Malice
At the conclusion of the evidence the learned trial judge had to determine whether or not it was open to the jury to conclude that the evidence was more consistent with the existence of an improper or ulterior motive than otherwise, so as to constitute what is called express malice or malice in fact, but might be better termed an abuse of privilege. Such may arise from the violence of language used, the introduction of irrelevant material, the continued publication, and other matters relied upon in the course of trial. I do not consider it necessary or, indeed, desirable to go into any details, description or examination of the alleged instances of such abuse of privilege. In Kirkwood Hackett v. Tierney [1952] I.R. 185, in delivering the judgment of the majority, O’Byrne J. said at p. 204:
“Applying the foregoing principle, which I consider to be sound in law, it is clear that you cannot get evidence of malice from a number of items of evidence, no one of which is, in itself, evidence of malice.”
I would have thought that there may be circumstances in which a series of items of evidence, no one of which would be sufficient to displace the burden of proof which I have sought to outline, may have the cumulative effect of doing so. The question does not, however, arise in the instant case since the matters to which I have referred may each as a matter of evidence support the holding of an abuse of privilege. I reserve for another occasion the question as to whether or not the decision in Kirkwood Hackett requires review.
Much reliance was placed upon the contention that the allegations contained in the letters had, essentially, been established as matters of fact through the evidence of the plaintiff. Insofar as they are pure questions of fact, I am inclined to share that view; the trouble is that many of the statements made in the letters are not allegations of fact but are expressions of opinion. The issues raised in the pleadings in the action are of alleged privilege and of justification. What may have started out as justification may well become a “rolled-up plea”. It was sought to cloak the issue of privilege in the instant appeal in an innocent garment of justification. These are two wholly distinct and separate issues; indeed if justification were established, it would be unnecessary to consider the issue of privilege. Even if justification were established here, however, there remained the factor, but not the issue, of fair comment.
In holding, as I do, that the appeal must be allowed and the action sent for a new trial, I am far from expressing a view that the plaintiff is entitled to damages.
[The re-trial came on for hearing before MacKenzie J. sitting with a jury on the 15th November. 1988. and was settled on the second day.]
Solicitors for the plaintiff: Gerald Y. Goldberg & Co.
Solicitors for the defendant: Coakley, Moloney & Flynn
McCormack v. Olsthoorn
[2004] IEHC 431
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of December, 2004.
This case relates to a most unfortunate incident which occurred between the plaintiff and the defendant in April, 2002. The incident is particularly unfortunate because I am quite satisfied that both the plaintiff and the defendant are very reputable gentlemen. The plaintiff, who is now in his late 70s, had a distinguished 40 year career in An Garda Síochána up to his retirement in 1988. He was a Superintendent when he retired, and had the honour of being elected President of the International Police Association. He is a person of the highest reputation. The defendant is a horticulturist, which business he carries on in partnership with his wife. For upwards of 20 years he has had a stall at the Milk Market in Limerick selling horticultural produce, 70% of which is of his own cultivation. I may also say that I am satisfied that each of the parties did his best to give a truthful account in evidence before me.
Undisputed facts.
On Saturday 13th April, 2002 the defendant, as usual, had a stall open for business at the Milk Market, Limerick. He was selling produce of various kinds and some potted plants. The plaintiff attended at the Milk Market. He, too, is a man of horticultural interests and grows plants in a glass house. He wanted to buy two tomato plants of a variety called Garden Pearl. He found one such plant in a shop or stall other than the defendant’s, bought it and took it away. It was a small plant in a plastic pot. It was not packaged. The pot itself was coloured, with some stickers.
The plaintiff went to other shops and stalls looking for the other plant he required. After some time he approached the defendant’s premises. There did not appear to be anyone in charge. He looked at plants, picked some up and put them down again on discovering that they were not of the variety he wanted. All this time he had the plant he had purchased elsewhere in his hand. He left the defendant’s premises. When he was about 25 yards away he was accosted by the defendant. There is considerable dispute as to precisely what happened at this time. Either at this scene or veryshortly afterwards in the defendant’s premises, the defendant realised that the potted plant the plaintiff was carrying was not from his premises. The plaintiff asked for the defendant’s name and was given his business card with a phone number on it. The plaintiff then went home. Later the same afternoon he telephoned the defendant. Two days later he wrote a letter to the defendant making certain allegations. There was no reaction to this letter and solicitors became involved. The defendant does not appear to have responded in any way until he received a registered letter dated the 27th June enclosing the Civil Bill. The defendant’s solicitors then wrote to the plaintiff’s representatives by letter of the 9th July, 2002 which letter contains a full acknowledgment of the plaintiff’s good character and of the fact that the defendant had made a mistake on the 13th April, 2002.
We must now turn to the disputes which lie at the centre of this case.
The plaintiff’s account.
The plaintiff says that when he was about 25 yards away from the defendant’s premises he heard a noise behind him as of somebody pushing through a crowd. A man he now knows to be the defendant grabbed him by the right arm and said loudly:
“You stole that plant from my shop”.
He said that the defendant had a very tight grip on his arm and was propelling him back towards the shop. The plaintiff says he protested and the defendant said again “You’ve stolen that plant”. The plaintiff said that this occurred at a point when there were “dozens of people around. We were right between people. Some stood back to look.” He said that he himself was upset. He asked the defendant to let him go, and not to drag him through the street. However, when they were about 5 or 6 yards from the defendant’s shop he released him. Once they were in the shop, the plaintiff says, the defendant demanded that he show him the plant he was carrying. Immediately the defendant saw it he said:
“I’m sorry, I don’t stock that plant.”
He then made a telephone call.
The plaintiff says he was very upset annoyed and embarrassed. He felt that he had been seen in a most suspicious and undignified position by many people. He was in the habit of frequenting the Milk Market every week and knew a lot of people there to see. By reason of his occupation he felt he was well known in Limerick generally. Later in the day, he phoned the number on the business card he had got and asked to speak to the owner. The defendant told him he was the owner. He wrote a letter of the 15th May, 2002, but got no reply. When the defendant’s solicitors eventually replied he felt that their letter was adding insult to injury. He said he was particularly annoyed at being grabbed by the arm and pulled back towards the shop. He said he had never gone back to the market and that it upset him considerably even to think of the episode.
The plaintiff said that he was accosted by the defendant some time shortly after half past twelve. He was certain of this: when everything had finished he went to his car and drove home for his lunch at 1.15pm.
The cross-examination of the plaintiff began with an unambiguous statement by the defendant’s counsel that the plaintiff was a man of the highest character and that the defendant had been mistaken in what he did. The defendant’s version was then put: it was as follows.
The Defendant’s account.
The defendant, Mr. Olsthoorn, said that the incident in question took place rather later than the plaintiff recalled. He said that he usually came down to his stall about 1 o’clock. By that time the market would be emptying and here he came in order to take over from the girl he had working there during the morning. He said that he was inside his premises when he saw a man, who turned out to be the plaintiff, at his display area outside. This man was picking up plants. Then he walked away with a plant. He walked down the street. The defendant followed him, pausing only to secure the till. He tapped him on the shoulder and said:
“Excuse me, Sir, did you take that plant?”
He said that the plaintiff turned around at that and he, the defendant, immediately saw that the plaint the plaintiff was holding was not one of his. His pots were a plain light brown colour: the plaintiff was holding a pot which was coloured, with stickers. He said that the plaintiff became upset, irate and vociferous. He said to him (the defendant) “How dare you assault me and defame my character.” Further questioned, however, the defendant said that the plaintiff had not actually used those words but had perhaps accused him of “ruining my good name” or words to that effect.
The defendant strenuously denied any physical contact with the plaintiff other than tapping him on the shoulder. He said that he had realised his mistake instantly and had no reason to force the plaintiff to come back to his shop. On the contrary, it was the plaintiff who insisted on coming back to the shop. The plaintiff told him “You will hear more about this.” He asked him for his name, and he gave him the business card. Later in the afternoon he phoned, and there was no dispute about the contents of the call. Describing his own reactions to the episode the defendant said “I was in a state of shock.”
The defendant was asked in considerable detail about what precisely he had seen when he was inside his shop. He said:
“I saw a plant in his hand. He was taking ones up. I saw him picking up a plant. I saw him put his hand around it. I was three meters away. I’d say it was in his right hand.”
At that point he was asked in cross-examination how was it he did not realise the plant was not his, in view of his distinctive pots. He said:
“He picked it up by the rim.”
and then a little later:
“I don’t know if he picked the pot up by the rim or had his hand around it. I did not see the pot.”
He said, however, that he thought he had seen the plaintiff going off with a plant he had picked up from his, the defendant’s, display stand. He said:
“I was fully sure that he had taken the plant.”
The defendant said that the market was emptying out at the time and there was only one or two people around when he accosted the plaintiff. He said “I only tipped him on the shoulder. I was not really angry.” He said he had been robbed about six weeks previously. After he realised his error he said:
“I kept apologising. He (the plaintiff) insisted on going back to the shop. I had immediately seen that the plant wasn’t mine.”
Perhaps importantly, the defendant stated emphatically that the plaintiff got angry and was distressed. He said that he had no idea what had happened to make the plaintiff angry but he was angry and very loud indeed.
It was put to the defendant that the letter the plaintiff had himself written two days later was consistent with his present complaints. He replied “I found the letter incredible. I though it would go away.”
Resolution of conflicts.
As I have already said, I believe that both the plaintiff and the defendant were honest witnesses. However, there is a measure of conflict between them which must be resolved on the balance of probabilities. On the defendant’s account it is clear that no actionable wrong has been committed: what he said was not defamatory and he did not have physical contact with the plaintiff at all except to tap him on the shoulder, which is quite legitimate. On the plaintiff’s account, however, he was in terms accused of theft while standing in a public place and was then forcibly propelled back towards the shop.
In all the circumstances, I believe that something more than the defendant recalls must have occurred. It is undisputed that the plaintiff was both angry and distressed shortly after the encounter between the parties started. There is nothing on the defendant’s account to explain this. On the defendant’s own account the plaintiff immediately complained of being assaulted and having his good name ruined. This was said at a time when there had been little if any interval for invention or afterthought. The plaintiff’s account is consistent with his letter of the 15th April. It is noteworthy that this letter was not replied to, nor its contents denied. Undoubtedly this was in part because the defendant hoped the whole thing would go away. A consequence of this, however, is that his denials would be more impressive if they had been made in writing or through his solicitor immediately after the event. The defendant himself said that he was in “a state of shock” after the event, which may have interfered with the clarity of his recollection. He volunteered that he had been robbed about six weeks previously and though he says he was “not really angry” when he approached the plaintiff, that phrase in itself implies that he was angry in some degree. Importantly, one of the complaints that the plaintiff made in his letter is that the defendant had “inferred” by which I think he meant implied, that “I might be responsible for stealing several of your plants on a previous occasion.” It does not appear to me that the plaintiff could have known of any loss by the defendant on a previous occasion unless the defendant had told him so. It follows from this that the defendant did say to the plaintiff more than he now recalls.
I believe that the defendant said something to the general effect the plaintiff alleges. I do not accept that he merely used the somewhat artificial form of words he himself suggests, though I believe he has convinced himself that that is all that occurred. I believe there must have been a greater measure of physical contact between the parties that the defendant now recalls, in order to explain the plaintiff’s immediate complaint of assault.
Submissions.
There were substantial submissions by Mr. O’Shea for the plaintiff and Mr. Clein for the defendant. It must be recalled that the action was for assault, battery, false imprisonment and defamation. Mr. Clein referred to the tenth edition of Gatley on Libel and Slander and in particular paragraphs 14.47 and 14.75. He submitted that the occasion was one of qualified privilege, citing Gatley as follows:
“Though there is no common interest involved, the Courts have long held that statements are privileged if made bona fide for the purpose of detecting and bringing to punishment a suspected criminal, or of recovering stolen goods. Thus, a person who suspects another of a particular theft may, with a view to inquiry, tax that individual with the theft, and although the suspicion turns out to be erroneous, the law gives no redress to the party accused.”
He also relied on the following extracts from paragraph 14.76:
“In cases of slander, where the defendant spoke the words complained of with honesty of purpose to a person or persons who had some legitimate interest, or some duty in the matter, the mere fact that one or even several (legally) uninterested persons happen to be present and heard what was said will not necessarily prevent the occasion from being a privileged occasion. The business of life could not well be carried on if such restraints were imposed on these communications and if they were never protected unless the occasion was strictly private. The fact, however, that some other persons or persons who had no common interest or duty in the matter were present is a circumstance which may be left to the jury, who are to determine whether the defendant was acting bona fide in speaking the words or was influenced by improper motives.”
It is not claimed in the present case that the defendant acted maliciously, that is with an improper motive. It appeared to me to be accepted that he bona fide but mistakenly believed that the plaintiff had taken one of his plants. Nor was it disputed that he had a legal interest in protecting his property. But, Mr. O’Shea submitted, the plaintiff’s right to his reputation was a superior right. In any event, he said, the privilege which the defendant might invoke extended only to enquiries, not to express statement or accusations.
Decisions on legal issues.
I believe that the occasion at the Milk Market was one of qualified privilege. The plaintiff had a legal right to protect his property and in doing so to “tax” an individual whom he suspected of a theft. Situations such as that which arose between these parties in the Milk Market arise quickly and without notice. For this reason I think it would be utterly unreasonable to require of the defendant any fine judgement or considered selection of the words which he used. Accordingly I do not consider that the direct statement which he made deprived him of privilege. Furthermore I do not consider that the presence of bystanders in itself had that effect, because, as Gatley observes:
“The law has been fairly liberal in allowing charges to be made in the presence of others.”
I have no doubt that this, too, is because of the hurried circumstances in which such accusations tend to be made. In one of the classic cases, Toogood v. Spyring [1834] 1 Cr M & R 181, the allegation was made in the presence of a third party two days after the event, and that did not displace the privilege. I do not need to consider whether that decision should now be followed.
In an Irish case, Coleman v. Kearns Ltd. [1946] IJR 5, a butcher’s accusation that a woman had stolen some bacon from a shop was held not to be privileged because it was made with the desire to recover the property, instead of a desire to bring a thief to justice. I cannot regard that decision as correct. There is no doubt that something said with a view to bringing a thief to justice is privileged, but it is not the only heading of privilege that arises in such circumstances. Privilege exists where a legally recognised duty or interest in speaking exists: in my view the legitimate desire to recover one’s property is just as much a legitimate interest as the desire to bring a thief to justice. Very often these desires will co-exist. Realistically, where there is a sudden theft or suspected theft, the owner or his agent will not pause to analyse his own motives in detail but will act immediately out of an instinctive and proper desire to stop a theft. I agree with what is said on this topic in McDonald “Irish Law of Defamation” at page 149.
Equally, I have to disagree with the dictum in the judgment in Coleman v. Kearns to the effect that a person seeking to avail of the privilege “must have reasonable grounds or evidence before so acting. He must not immediately jump to a rash conclusion.” I do not believe that the requirement of “reasonable grounds” is a correct statement of the law. Privilege is lost by malice, excessively wide publication or one of the other established causes. It is not lost merely because the belief turns out to be erroneous, or because the defendant was hasty. The presence or absence of reasonable grounds for the defendant’s belief may be very relevant in a case where malice (that is, some improper motive) is pleaded but there is no such plea here, and on the facts, there could not have been. Having seen and heard the parties I am in event quite satisfied of Mr. Olsthoorn’s bona fides and I believe that he acted as he did on the spur of the moment (delay would obviously have been fatal to his chances of recovering the plant he believed stolen) and after a most unfortunately coincidental sighting of what he believed to be a theft.
I will therefore dismiss the plaintiff’s claim in defamation. In doing so I would observe that there must of necessity be an element of hardship where one honest man due to an unfortunate coincidence of circumstances bona fide accuses another honest man of theft. It is a nice question as to whether the reputation of the latter should not predominate over the privilege of the former, but I do not think that it does. The law must make realistic allowances for the absolutely unheralded manner in which these circumstances arise, the lack of time to formulate a polite form of words to use and the need for haste generally. I am quite satisfied that if there had been time to think Mr. Olsthoorn would have said something along the lines he now thinks he said. The fact that he is under a misapprehension in this regard does not however deprive him of privilege in respect of the words I am satisfied were spoken.
Cagney -v- Governor and Company of the Bank of Ireland
[2015] IEHC 288
DECISION of Mr. Justice Hedigan delivered the 7th of May 2015
1. I have acceded to the defendant’s application to withdraw the plaintiff’s case from the jury. The following are my reasons for doing so.
2. The principle which should guide the court in an application such as this is straightforward. It may be stated as follows; the jury are the judges of the facts in any case submitted to them for their determination. A judge sitting in a case being tried by a jury will be very reluctant to interfere with a jury’s unique function. As a general principle, it is only when the judge is satisfied that, on the undisputed facts, no case in law exists, that he may withdraw the case from the jury. When he is so satisfied however, he must, in justice to the defendants withdraw the case from the jury. See Paul Reid v. The Commissioner of An Garda Síochána and Others, High Court, 9th May 2014 and Lydia O’Hara v. The Board and Management Scoil Chriost Rí and Another, High Court 8th July 2014 para. 3.
3. The plaintiff’s claim herein is for damages for defamation. He alleges that the bank caused two entries to be made in the Irish Credit Bureau (ICB) against his name, according to him categories “K” and “L”. These categories mean respectively that his credit card had been revoked and that he had settled an account for less than the amount due. The bank denies that it defamed the plaintiff and relies upon the defence that it communicated this information to the Bureau on occasions that were of qualified privilege. It pleads that the letters complained of were published; –
(1) In pursuance of a legal and/or social and/or moral duty to a body which had a corresponding duty of interest to receive them and/or
(2) In the protection or furtherance of an interest to a body which had a common or a corresponding duty or interest to receive them and/or
(3) In the protection of a common interest to a body sharing the same interest.
4. The Irish Credit Bureau is a credit reference body owned and financed by its members. They are all financial institutions or local authorities. It was created for the mutual protection of its members. The Bureau retains information supplied by its members on the performance of credit agreements between financial institutions and borrowers. This information may be accessed by its members in order to assist them in assessing the risk of providing credit to borrowers. The Bank of Ireland is a member.
5. Section 18 (2) of the Defamation Act 2009 provides that it shall be a defence to a defamation action for the defendant to prove that: –
“(a) the statement was published to a person or persons who—
(i) had a duty to receive, or interest in receiving, the information contained in the statement, or
(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and
(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.”
Section 18 (6) of the 2009 Act provides that such defence shall be known as the “defence of qualified privilege”.
Section 18 (7) of the 2009 Act defines “duty” as “a legal, moral or social duty” and “interest” as “legal, moral or social interest”.
6. Qualified privilege is helpfully defined in Cox and McCullough’s Defamation Law and Practice at para. 8-01 as follows: –
“…an occasion of [qualified] privilege will generally arise (both at common law and under the 2009 Act) where the publisher has a legal, social or moral duty to publish the offending material and the recipient has a reciprocal interest in receiving it, and it becomes a question of fact as to whether or not in a particular case, such a mutuality of duties or interests exists. If publication (even of untrue material) occurs on an occasion of privilege and is warranted by the occasion, this is sufficient to afford the defendant a defence in a defamation action, provided only that the plaintiff cannot prove that the defendant was acting with malice.”
I gratefully adopt this passage from the learned authors.
7. The defence of qualified privilege is not lost because the statement complained of is untrue. Gatley on Libel and Slander 12th edition at para 14.18 states in this regard: –
“The fact, however, that the defendant is mistaken as to the facts and the statement does not deprive him of the privilege: the very purpose of the defence is to allow the making, in good faith, of untrue statements.”
Thus even if the bank were wrong about the revocation of the plaintiff’s card and that his account was settled short the defence of qualified privilege is not lost.
8. It seems clear from the judgment of Palles CB in Fitzsimons v. Duncan and Kemp 1908 2 I.R. 42 that fair and reasonable enquiries as to credit, made by traders and consequently the furnishing of such details is an occasion that is privileged. The learned Chief Baron said: –
“I entertain a clear opinion that the occasion was privileged. It is essential to the due carrying on of mercantile business that a wholesale trader, who contemplates selling on credit to a retail trader, should be entitled to make fair and reasonable enquiries as to the solvency of the latter;”
This is a very old judgment arising from an age that could not possibly have contemplated the complexity and flexibility of modern financial transactions including ones made electronically. Yet the learned Chief Baron’s wisdom still reaches out across more than a century to us. To do business, whether in the horse and buggy days of 1908 or the cyber world of today, one must be able to find ways to accurately assess the creditworthiness of those with whom one wishes to trade. That is done for financial institutions by the Irish Credit Bureau. The ability of those institutions to rely upon such an agency is crucial to their ability to provide ready, flexible ways for everyone to access credit and thereby use credit and debit cards and the ubiquitous ATM. All of these enhance and convenience many of the essential activities of modern daily life. Needless to say this should be done in a way that respects the privacy and the rights of the people affected. Thus in my judgment the communication of the information that the plaintiff’s card was revoked in 2010 and that his account was settled short in 2012 was made on an occasion of qualified privilege.
9. This privilege may be defeated by a plaintiff where he can establish that the communication was made with malice. This means that the defendant acted with an improper motif on the privileged occasion. See Cox and McCullough (cited above) at paragraphs 8.103 and 8.104. The plaintiff has not pleaded malice and has not sought during the hearing to establish malice. Indeed the plaintiff himself said on a number of occasions that he did not know why the bank had communicated the information to the Irish Credit Bureau. Moreover it was manifestly clear from the evidence of John Ruddy of the Bank of Ireland, who made the decision to communicate with the Bureau, that he did not even know the plaintiff. It was quite clear that he simply acted in the normal way on the information that was communicated to him. Thus the occasion of qualified privilege has been established and no defamation can arise from the communication in question.
10. The plaintiff has many bitter complaints about the way in which he was treated by the bank. This case however is solely concerned with the question as to whether the bank defamed him when it communicated the bureau the information that resulted in his being accorded a status of “K” and “L”. As I have decided that the communication was on an occasion of qualified privilege, that claim must fail. I find that on the undisputed facts no case in law exists and thus I was compelled to withdraw the case from the jury.
Jeffery -v- Minister for Justice and Equality & ors
[2014] IEHC 99
JUDGMENT of Mr. Justice Barrett delivered on the 28th day of February, 2014
1. This case centres on whether the immunity from defamation that arises in court proceedings extends to other forms of action also.
Facts
2. On 9th December, 2010, the plaintiff, Mr. Jeffery, was convicted at Sligo District Court of certain road traffic offences. Before Mr. Jeffery was sentenced, a member of An Garda Síochána informed the Court that Mr. Jeffery had previously been convicted of a number of serious offences. In fact, the person who committed those offences was another person by the same name. The Mr. Jeffery who was before the District Court and who is the plaintiff in these proceedings had no previous convictions. Mr. Jeffery’s solicitor indicated to the District Court that an error had been made and sentencing proceeded without regard to the mistaken information. The District Court therefore had publicly accepted the correction. Subsequently, the erroneous list of convictions was reported prominently in the local media. There is no suggestion that what occurred before Sligo District Court was done with any malice by the member of An Garda Síochána and the court accepts that it was not. Nor is it suggested that the State was in any way complicit in the media attention that followed the District Court proceedings.
3. Since 2011, the solicitors for Mr. Jeffery have variously sought that An Garda Síochána apologise for the error that arose at Sligo District Court, compensate Mr. Jeffery and clarify matters before a further sitting of the Sligo District Court. Eventually, on 20th October, 2011, Mr Jeffery’s solicitors issued a plenary summons seeking damages for negligence, breach of duty and negligent misrepresentation on the part of the defendants, jointly and severally, their respective servants or agents. Correspondence continued between the parties and just over a year later, on 6th December, 2012, the Chief State Solicitor’s Office issued a letter forwarding a ‘Statement of Regret’ from An Garda Síochána. It might perhaps be contended that this was too little, too late. Certainly the State’s continuing refusal to provide a corrective statement before Sligo District Court in the particular circumstances that arose is suggestive of unbecoming obduracy. Indeed there seems no reason why the provision of such a statement might not yet be done or why such a course of action might not in the future be considered where a mistake of the sort in issue in this case leads to the acute embarrassment, anxiety and distress that Mr. Jeffery claims to have suffered. In any event, in the present case Mr. Jeffery does not consider that such private correspondence as issued to him from An Garda Síochána is an adequate response to the public injury that he claims has been done to him. So, he has continued his High Court proceedings.
Defamation
4. Given that the crux of the issue arising between the parties is the words spoken at Sligo District Court, it might perhaps be contended that it is surprising that, having decided to sue the defendants, Mr. Jeffery did not commence an action in defamation. A possible answer as to why he did not sue the State for defamation is that such an action would undoubtedly have failed. Section 17(2) of the Defamation Act 2009 establishes absolute privilege in circumstances where, inter alia, the offending statement is made by a party, witness or legal representative in the course of proceedings presided over by a judge. The Sligo District Court proceedings were clearly proceedings presided over by a judge and the member of An Garda Síochána who presented the purported criminal record did so, as the defendants’ legal submissions put it, either as an agent of the Director of Public Prosecutions or as a witness. Thus, section 17(2) applies to what occurred and an action in defamation would fail. However, Mr. Jeffery is seeking damages for negligence, breach of duty and negligent misrepresentation and section 17(2) is only of relevance to a defamation action. Can an action for negligence and breach of duty succeed where an action in defamation would have failed? To answer this question the court has had regard to a number of cases that address the rationale for and the ambit of the privilege that arises within the ambit of court proceedings.
Case-law
5. Pre-eminent among recent Irish cases that deal with the issue of privilege is the Supreme Court decision in Looney v. The Governor and Company of the Bank of Ireland and Morey (Unreported, ex-tempore, Supreme Court, 9th May 1997). In that case Mr. Looney was suing for damages for an alleged libel uttered by a certain Ms Morey in an affidavit sworn by her as an employee of Bank of Ireland. His claim was unsuccessful in the High Court and, on appeal, in the Supreme Court also. Giving judgment in the Supreme Court, Hamilton C.J. stated:
“[T]he problem in this case is while the Court accepts Mr. Looney’s constitutional right to vindication of his good name, this constitutional right must be balanced against the obligations of the courts to administer justice in cases coming before it and in order to enable the courts to properly function, to properly ascertain all the facts in the particular case before it and the necessity in many cases to have witnesses free to give evidence before it without fear of consequences provided they do not traverse the line and make allegations which are not relevant to the issue before the Court if they avail of the opportunity to make allegations maliciously or in relation to matters which are not of the concern of the court”.
6. O’Flaherty J. amplified the principle in issue thus:
“[T]here is at issue a far more fundamental point which is the need to give witnesses (and also indeed, the judge) in court, a privilege in respect of oral testimony and also with regard to affidavits and documents produced in the course of a hearing. Such persons either witnesses or those swearing affidavits, are given an immunity from suit. Otherwise, no judge could go out on the bench and feel that he or she could render a judgment or say anything without risk of suit. Similarly, witnesses would be inhibited in the way they could give evidence…I would concur with setting [a]…boundary to the immunity. If someone for a malicious purpose, or in order to abuse what he might have thought was a situation of immunity that he enjoyed in Court simply used that situation to make defamatory or malicious statements against others, in a manner that had nothing to do with the particular proceedings in which he was engaged, then it might well be that he would have no answer in an action for defamation or malicious falsehood, or whatever.”
7. Barrington J. echoed the other Supreme Court judges, holding that:
“[T]here is possibly some bound to the so called absolute privilege of the witness in a case of flagrant abuse but this case is not that particular case and as Mr. Justice O’Flaherty said it’s a long way from it.”
8. In short, all the Supreme Court judges were agreed that absolute privilege generally applies to what is said in court proceedings. All of them were agreed also that there is likely some limit to this privilege; so that if a witness was to say something malicious and wanton such a witness might be exposed to an action in defamation. What occurred in the present case does not even begin to approach the type of “flagrant abuse” envisioned by the Supreme Court judges in Looney. What happened here was a mistake.
9. It might perhaps be contended that the Looney case was concerned with an action for libel whereas the current proceedings are concerned with negligence and breach of duty. However, the principles that informed the Supreme Court decision in Looney cannot but have equal application in an action for negligence or breach of duty. Two English cases, both of which are of striking relevance in the context of the present proceedings, suffice to demonstrate the validity of this. The reasoning in those cases is obviously not binding on this court, but it is certainly persuasive.
10. In Marrinan v. Vibart and Others [1963] 1 Q.B. 528, the Court of Appeal refused to countenance an action for conspiracy to make defamatory statements inter alia at a criminal trial, Sellers L.J. (with whom Diplock L.J. agreed) holding, at 535, that:
“Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.”
In the present case one cannot get around the fact that regardless of any negligence or breach of duty that occurred, if it occurred, the crux of the issue between the parties derives from what was said in the course of the Sligo District Court proceedings. Consequently, those alternative causes of action must, to paraphrase the Court of Appeal, suffer the same fate of being barred by the rule which protects witnesses in their evidence before the courts and in the preparation of that evidence. Why should these alternative causes of action also be deemed incapable of being litigated successfully? A comprehensive answer to this question is provided in the English case of Evans v. London Hospital Medical College and Others [1981] 1 All E.R. 715. In that case the plaintiff alleged that the negligence of certain pathologists in carrying out a post-mortem investigation had led to her being charged with a murder of which she was subsequently acquitted. The plaintiff conceded that the defendants would have been immune from liability for anything said in court but contended that there was no immunity in respect of negligent acts or omissions prior to the prosecution even being commenced. Drake J. held that this argument would fail and that the action would be struck out, stating at pp. 719 – 720:
“It seems to me that this immunity would not achieve its object if limited to the giving of evidence in court and to the preparation only of the statements or proof of evidence given by the witness. Any disgruntled litigant or convicted person could circumvent the immunity by saying he was challenging the collection and preparation of the evidence, to be taken down as a statement or proof of evidence later, and not challenging the statement or proof itself. In other words he would seek to base his claim on things said or done by the witness at some time prior to the statement or proof being given by him. In my opinion this would largely destroy the value of the immunity…It remains, of course, a question to be decided on the facts of each case (or, in the present instance of an application to strike out, on the alleged facts) whether or not the negligent act or omission arose during the course of preparation of the evidence.”
11. In this case the negligent act or omission, if such it was, would presumably have been the procuring of the criminal records by the member of An Garda Síochána, an act that clearly arose during the course of preparation of the evidence later given at Sligo District Court. It is perhaps worth noting in this regard that it is a longstanding feature of the Irish law of defamation since at least the time of Kennedy v. Hilliard (1859) 10 Ir. CLR 195 and MacCabe v. Joynt [1901] 2 I.R. 115, that there are acts done prior to court proceedings which attract the same privilege that clothes those later proceedings. This is a feature of defamation law because of the public policy cogently identified by Pigot C.B. in the earlier case whereby:
“It is of far less importance that occasional mischief should be done by slander…than that the whole course of justice should be enfeebled and impeded.”
The court sees no reason why the same principle should not also apply to an action, such as the present proceedings, in which negligence and breach of duty are alleged, or indeed in any other form of action that it is sought to construct on the basis of what was said or done at or in preparation of court proceedings.
12. It appears to the court that the following key principles can be gleaned from the above cases:
– first, any perceived damage that appears to arise for an individual as a result of what transpires at or before court proceedings must be balanced against the obligation of the courts to administer justice in cases coming before them, an obligation which requires that witnesses be free to give evidence without fear of consequences;
– second, in instances of “flagrant abuse”, to borrow from the judgment of Barrington J. in Looney, there may be some bounds to the privilege; however, this requires malicious and wanton behaviour of a type that was not present in the Looney case and also does not arise in the present case;
– third, whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings is generally barred by the long standing rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.
Conclusion
13. The courts are temples of truth. That, at least, is the ideal. Within their confines there should be a minimum of circumspection on what can be said so that the truth can be determined and justice done. Were matters to be otherwise, were witnesses to be exposed to the threat of any form of litigation for what they said in court, truth would soon be the victim of unreal expectations and our system of court-administered justice would quickly founder. For this, and for the reasons identified above, the plaintiff’s action in this case must fail.
Cullen -v- Sheehy & anor
Nevin -v- Sheehy & anor
[2017] IEHC 459
JUDGMENT of Ms. Justice Baker delivered on the 10th day of July, 2017.
Privilege
106. The defendants do not seek to rely on a defence of absolute privilege and this is a prudent concession as ss. 17(2)(s) and (u) of the Act afford such privilege only to statements:
“(s) made in the course of an inquiry conducted on the authority of a Minister of the Government, the Government, the Oireachtas, either House of the Oireachtas or a court established by law in the State,
…
(u) contained in a report of an inquiry referred to in paragraph (s) or (t),”
107. Mr Woulfe’s report was not a report of an inquiry conducted within this statutory framework. It was an opinion of senior counsel with experience in the area of law, and had for the purposes of the Act no protected or privileged status.
Qualified privilege
108. Section 18 of the Act sets out the provisions in relation to the defence of qualified privilege in defamation:
“18.—(1) Subject to section 17, it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought would, if it had been made immediately before the commencement of this section, have been considered under the law (other than the Act of 1961) in force immediately
before such commencement as having been made on an occasion of qualified privilege.
(2) Without prejudice to the generality of subsection (1), it shall, subject to section 19, be a defence to a defamation action for the defendant to prove that—
(a) the statement was published to a person or persons who—
(i) had a duty to receive, or interest in receiving, the information contained in the statement, or
(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and
(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.
(c) contained in a determination referred to in that Part.
….
(6) A defence under this section shall be known, and is referred to in this Act, as the “defence of qualified privilege”.
(7) In this section—
“duty” means a legal, moral or social duty;
“interest” means a legal, moral or social interest.”
109. The defendants argue that they had a legal, social or moral duty to communicate the conclusions of the second Woulfe Report. It is for the defendant to establish that he or she was under such an obligation: Watts v. Times Newspapers [1997] 1 Q.B. 650 at 670.
110. Mr. Sheehy initially claimed the aim of the press release was to inform the public, but later accepted that the publication of the press release was unprecedented and that he had not issued such a press release on any occasion before or since. He gave evidence that he felt that the Council and staff had been under a cloud of suspicion arising from the matters and that he wanted to deal with “a number of issues that I felt were important for the Council to make”. He accepted that he did not include any of the contents of the report which were not favourable to the Council. A fair and balanced report would have included some observation at least with regard to the Mr Woulfe’s observations regarding the opaque nature of the CPO legislation which dates from the 19th century, the lack of clarity with regard to site selection, and the fact that Mr. Woulfe accepted that there was a marked difference between the purchase price of the CPO lands and the market value at the time of their sale.
111. Cox v. Richards [1846] 2 C.B. 569 is authority for the principle that at common law a volunteered statement was “far less likely to attract privileges” other than under exceptional circumstances (Maher The Law of Defamation, 2011 at para. 8.19). The statement impugned in the present case was voluntary in that sense, as the statement at para. 5 of the press release, which was not a direct quote from the Woulfe Report, and was not related to a matter which Mr. Woulfe had considered in his review.
112. The CPO was a matter of interest to the public. The defence have not shown that they were under obligation to issue the press release with the narrative or comment impugned.
113. The defence of qualified privilege will fail if a plaintiff proves a statement was made with malice: section19. The term malice in the context of defamation has a narrow meaning, where an expressed statement is not genuinely believed or an occasion where privilege is abused.
114. The evidence regarding the purpose in issuing the press release, and the fact that the press release selected only those parts of the second Woulfe Report that favoured the Council points to a degree of malice or an improper purpose.
115. For these reasons, I find that the defendants cannot avail of qualified privilege as a defence.
Rebuttal?
116. The defendants argue that the press release was in effect a response or rebuttal of criticisms made in public regarding the matters at issue.
117. An attack on the integrity of a plaintiff will also not attract qualified privilege if it is not reasonably necessary to rebut the original charge: Hamilton v. Clifford [2004] EWHC 1542 (QB).
118. The response of the defendants to earlier “allegations” by the Councillors was not for the reasons outlined necessary and proportionate, and it to be observed that the press release issued by the Department on 24th April, 2013, did not stray outside the Woulfe findings.
Honest opinion
119. The common law defence of fair comment has been restated and renamed the defence of honest opinion in the Defamation Act 2009. The relevant provisions are to be found in Part 3 of the Act at s.15 (abolishing the old defences including that of fair comment) and ss. 20 and 21 (creating the defence of honest opinion).
120. The relevant parts of Section 20 provide as follows:
“(1) It shall be a defence (to be known, and in this section referred to, as the “defence of honest opinion”) to a defamation action for the defendant to prove that, in the case of statement consisting of an opinion, the opinion was honestly held.
(2) Subject to subsection (3), an opinion is honestly held, for the purposes of this section, if –
(a) at the time of the publication of the statement, the defendant believed in the truth of the opinion or, where the defendant is not the author of the opinion, believed that the author believed it to be true,
(b)
(i) the opinion was based on allegations of fact –
(I) specified in the statement containing the opinion, or
(II) referred to in that statement, that were known, or might reasonably be expected to have been known, by the persons to whom the statement was published,
or
(ii) the opinion was based on allegations of fact to which –
(I) the defence of absolute privilege, or
(II) the defence of qualified privilege,
would apply if a defamation action were brought in respect of such allegations,
and
(c) the opinion related to a matter of public interest.
121. Section 21 deals with the meaner of distinguishing between fact and opinion:
“21.—The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:
(a) the extent to which the statement is capable of being proved;
(b) the extent to which the statement was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement consisting of an allegation of fact; and
(c) the words used in the statement and the extent to which the statement was subject to a qualification or a disclaimer or was accompanied by cautionary words.”
122. Cox & Mc Cullough suggest at paragraph 14.56 of their text, Defamation: Law and Practice, 2014, that in order for the defence to be available the statement must:
(i) either be believed by the defendant or if the defendant is not the author, then he or she must believe that the author believed it to be true;
(ii) be based on allegations of fact which the defendant can prove to be true;
(iii) relate to a matter of public interest, and
(iv) must be an opinion rather than a fact.
123. Mr. Woulfe’s conclusions and opinions are not facts but a statement of the opinion of specialist counsel. Mr Woulfe’s findings that “almost all of the concerns are not well founded or are misconceived” (para. 5.03) does not establish the fact of that statement. Further Mr. Woulfe accepted some but not all of the concerns. He made no finding regarding the costs to the Council. No attempt was made to distinguish the findings of Mr Woulfe from the opinion of the Council.
124. The press release stated a number of the findings of Mr. Woulfe. The last paragraph is not a repeat of the findings of Mr Woulfe, not all of the concerns were “unfounded and misconceived”, and the word “allegations” imputes blame where none was found by Mr Woulfe.
125. I do not consider for that reason that the press release contains matters of opinion which are identified as opinion, or that they were honestly held within the meaning of the Act.
Damages
126. I accept the evidence given by the two plaintiffs that the personal effect on them of the press release was public odium, and that they were directly referred to as “money wasters” by members of the public. The local elections occurred not long after the newspaper report was published, and Mr. Nevin lost his seat. I do not take any view as to whether this is directly attributable to the newspaper article, but in my mind the meaning of the press release was that the two plaintiffs were responsible for wasting money at a time when money was scarce.
127. The claims were commenced in the Circuit Court. The plaintiffs therefore do not seek a large sum in damages. I consider that their purpose was to be publicly vindicated and the level of damages is a secondary consideration. With this in mind, I propose an award of €20,000 in each case. I will allow the appeals.