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Ten Defamation Howlers Eanna Mulloy SC

No libel if disbelieved

No libel unless negligence

Reader must understand defamatory meaning

Innuendo is for the reader

What the reader thought not inadmissible

Plaintiff’s character fair game

Libel not a strict liability tort

No libel if publisher meant well

The greater the truth the greater the libel

Libel must impute some wrong to the Plaintiff

“The statement is judged by the standard of an ordinary right-thinking member of society. Hence the text is an objective one and it is no defence to say that the statement was not intended to be defamatory, or uttered by way of a joke. A tendency to injure or lower the reputation of the Plaintiff suffic-es, for ‘if words are used which impute discreditable conduct to my friend, he has been defamed by me, although I do not believe the imputation, and may even know that it is untrue.” Hough v. London Express [1942] KB 507, 515. Hence it is settled (Morgan v .Odhams Press Ltd [1971] 1 WLR 1239 (HL)) that a statement made be defamatory although no-one to whom it is published believes it to be true.” Theaker v. Richardson [1961] WLR 151 (libel of spouse posted through letter box).“ Salmond & Heuston on the Law of Torts, 19th ed, 1987, p 155.

Words are only defamatory if they impute conduct to the Plaintiff which would tend to lower him in they eyes of considerable and respectable classes of the community, though not in the eyes of the community as a whole: Quigley v. Crea-tion Press Ltd [1971] IR 269, 272, Salmond & Heuston (19th ed) p 158. Jury primacy Quigley v. Creation Press Ltd [1971] IR 269 (Walsh J for the 3 Judge SC)

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In defamation, as in perhaps no other form of civil proceedings, the posi-tion of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of. In determining this matter, the judge will construe the words in accordance with a fair and natural mean-ing such as would be given to them by reasonable persons of ordinary in-telligence in our own community; and that necessarily involves a consid-eration of the standards of the community and the position of the plaintiff in that community. In a community which places a high value on female chastity, to say un-truthfully of a woman that she was the victim of a rape may well lower her in the eyes of the community by creating an undesirable interest in her or by leaving her exposed to the risk of being shunned or avoided— however irrational it may appear that a person who has been the victim of a criminal assault should as a result, through no fault of her own, be lowered in the eyes of ordinary reasonable persons in the community: see the remarks of Scrutton L.J. in Youssoupoff v.Metro-Goldwyn-Mayer Pic-tures Ltd (1934) 50 T.L.R. 581 [£25,000 upheld on appeal]. In Fullam v. As-sociated Newspapers Ltd [1955-56] IR Jur Rep 45, the former Supreme Court held that to write of a professional footballer in Dublin, who was extreme-ly well known to the followers of association football, that he never used his right foot in kicking a ball because he was unable to do so was capable of being defamatory when it was not true. The position of the plaintiff in the theatre in Ireland has been long estab-lished and is well known. I cannot say that it would be wholly unreason-able for a jury to find that it was defamatory to say falsely of him that the pursuit of money abroad is higher on his scale of personal preferences than the development, or the exercise, of his artistic talent in Ireland. In my view, right-minded ordinary people in this country could regard him as having fallen in their estimation if that were the fact. For that reason I cannot hold that the words complained of were incapable of being de-famatory. In my view, the learned trial judge did not misdirect himself in law in leaving the question to the jury and, for the reasons I have already given, I see no reason to hold that the jury's verdict [£600] cannot be sus-tained.

“The interpretation of a defamatory statement is a question of fact for a jury or for a Judge if sitting without a jury. Since the Libel Act, 1792 (Fox’s Act), ‘libel or no libel’ has always been essentially a question for the jury. True the Act of 1792 is in terms limited to criminal proceedings but has always been regarded as merely declaratory of the common law, [including that of Ireland].” Salmond & Heuston, p 162. The right of the jury in this matter subject however to one limitation in that the Judge must first be satisfied that there is sufficient evidence to go to the jury, that

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is to say, must be satisfied that the statement is reasonably capable of the mean-ing which the Plaintiff alleges and complains of and if he considers that it is not so capable, the case must be withdrawn from the jury altogether.” ******************** Liability “The threshold of liability in libel is very low, because as a result of Hulton v. Jones [1910] AC 20 [£1,750 upheld on appeal], it is easy for a Plaintiff to get his case before the jury. On the other hand, the balance is tipped in favour of the Defend-ant by the number and complexity of the defences.” Salmond & Heuston on the Law of Torts (19th edition, 1987) p 174. These are all the defences to libel listed in p 43 of the LRC Report 1. No publication. 2. No reference to Plaintiff. 3. No defamatory meaning of the Plaintiff. 4. Publication true in substance and fact (justification). 5. Absolute privilege. 6. Qualified privilege. 7. Fair comment on a matter of public interest. 8. Innocent publication and offer of amends made (s 21). 9. Innocent dissemination. 10. Publication with consent of Plaintiff. 11. Accord and satisfaction. 12. Res judicata. 13. Release. 14. Lapse of time under Statute of Limitation. It is clearly establishd at common law that in determining the meaning of words the intention and knowledge of the publisher are immaterial: “trite law”,Berkoff v Burchill [1996] 4 All ER 1008: Gatley 11 ed 2008 §3.14. "Liability for libel does not depend on the intention of the defamer, but on the fact of defamation." Cassidy v Daily Mirror [1929] 2 KB 321, 354 Russell LJ. "Libel… consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and in-jured by it. A person charged with libel, cannot defend himself by showing that he intended in his breast not to defame the plaintiff." Hulton v Jones [1910] AC 20, 23.

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"It is not the defendant's intention, or the meaning in his own mind, that makes the sense of a libel": Bolton v O'Brien (1885) 16 LR Ir 97, 118 per O’Brian J. Gatley §3.14, footnote 156 Presumption of falsity “The burden of proof is on the plaintiff to show that the words complained of are defamatory. However once this is shown, the law presumes the statement be false. The plaintiff does not have to prove the falsity of the statement; but rather, the defendant who raises the defence must establish its truth.” Law Reform Commis-sion Consultation Paper on the Civil Law of Defamation 1991 § 57, p 46.

**************************** Damage capacity Hentys were Chichester brewers, who also owned a large number of inns in Sus-sex and Hampshire, to which they supplied their own beer. They allowed their accounts with these inns to be settled from time to time with cheques which their tenants obliged their own customers by cashing across the bar, and paid these cheques into the Chichester branch of the Bank. But in 1878 a new manager ar-rived at this branch and refused to cash cheques drawn on other branches of his Bank by persons unknown to him. This was on any score a stupid decision, es-pecially as the cheque which provoked it was only for £5 in only two other simi-lar cheques for total of £42 had been presented during the year. But the manager refused to give way, and when Hentys threatened to circulate their customers not to cash cheques drawn on the bank he replied “I am quite indifferent you are sending out orders to your tenants not to cash our cheques.” Henrys thereupon sent to 137 other customers and tenants (knowing nothing of the dispute) occu-pying their public houses a printed notice in the following form:

Hentys & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.

The bank case was that this was tantamount to saying it was insolvent or on the verge of insolvency. If so, it could not be more serious. But Hentys denied this meaning and pleaded qualified privilege hence not liable unless malice could be established against them. They did not argue the point that, if a libel, the bank manager had authorised or consented to its publication The case was tried by Coleridge CJ and a special jury. The strongest argument for the bank was of course, the interpretation that the large number of its custom-ers had put upon it: but was this necessarily a reasonable interpretation? It might admit a number of different things. Why seize upon only the bad one? Hentys

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had done something they were entitled to do, refuse to accept cheques of a par-ticular Bank, and there was simply no other way in which they could have ex-pressed the refusal except by the written notice. But against this it was argued that the notice should have contained a statement of what had taken place be-tween the Bank and Hentys, or at any rate should not have been left open to the inference of which the bank complained. Coleridge CJ thought that the circular might have a defamatory meaning and left the question to the jury. The special jury could not agree and were discharged. The Bank then sought another trial before another jury while Hentys contented the words were incapable of the defamatory meaning and there was nothing for any jury to decide; hence Hentys were entitled to judgment. Two judges of the Common Pleas division agreed with Coleridge CJ; but the Court of Appeal divided 2:1 the other way; and the decision was finally upheld by the House of Lords in 1882 by a 4:1 majority. So the House of Lords decided the notice could never be defamatory and the bank lost. Six judges had support-ed this finding but five against. The judgments take up more than 70 closely printed pages.

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Jury? Incapable!

Coleridge CJ ��

Common Pleas ����

Court of Ap-peal

�� ����

House of Lords �� ��������

5 6

So no libel “although the notice resulted in a run of a quarter of a million pounds (£277,000) on the bank immediately it was issued, and the bank’s customers were presumably ordinary men who believed the statement had the meaning alleged.” (S & H 163). Commenting on that case Salmon LJ in Slim v. Daily Telegraph [1968] 2 QB 157, 187 stated that on the question of what words are capable of meaning to the ordi-nary layman,

“the principles were never better formulated than they were in Capital and Counties Bank v. Henty — nor perhaps ever worse applied.”

************************** SINGLE MEANING RULE Charleston & Another v. News Group Newspapers Ltd [1995] 2 AC 65 At first blush this argument has considerable attractions, but I believe that it falls foul of two principles which are basic to the law of libel. The first is that, where no legal innuendo is alleged to arise from extrinsic circumstances known to some readers, the "natural and ordinary meaning" to be ascribed to the words of an al-legedly defamatory publication is the meaning, including any inferential mean-ing, which the words would convey to the mind of the ordinary, reasonable, fair-minded reader. This proposition is too well established to require citation of au-thority. The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of dif-ferent readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publica-tion conveyed to the notional reasonable reader and to base its verdict and any

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award of damages on the assumption that this was the one sense in which all readers would have understood it. The origins and the implications of this sec-ond principle are the subject of a characteristically penetrating analysis in the judgment of Diplock L.J. in Slim v. Daily Telegraph Ltd [1968] 2 Q.B. 157, 171-172, 173, 174, from which it will, I think, be sufficient to cite the following passages:

"Everyone outside a court of law recognises that words are imprecise in-struments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to differ-ent men and that more than one meaning should be 'right' conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the 'right' meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the 'right' meaning by the adjudicator to whom the law confides the responsibility of determining it. . . . "Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are rea-sonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those mean-ings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudi-cator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel. . . . "Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the 'right' meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single 'natural and ordinary meaning' which is 'right,' survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel.”

Single Meaning Where the words complained of are ambiguous, that is reasonably capable of ei-ther an innocent or defamatory meaning it is a question of fact for the jury to de-termine in which of the two meanings that are to be understood and the case should not be withdrawn from them despite occasional statements proposing a more stringent test. Different (but still reasonable) people may understood

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words in different ways: The issues is whether any of those people could have understood the words in the sense pleaded. Indeed the contrary view seems to be inconsistent with the generally accepted view of the respective roles of Judge and jury, Gatley 3.22. “For the purpose of the law of defamation the words have only a ‘single right’ meaning: Slim v. Daily Telegraph approved by Lord Bridge in Charleston v. News-group Newspapers Ltd [1995] 2 AC 65, 71. This does not mean that any more than one meaning cannot be left to the jury, for that happens every day; but it does mean that the jury or other fact-finder must ignore the undoubted fact that in many cases it is likely (or even obvious) that different readers will have under-stood the publication in different ways, some defamatory, others not. However, the single meaning rule does not apply in an unqualified way where the issue is qualified privilege: Bonnick v. Morris [2002] 3 WLR 820 and the same is being suggested in relation to fair comment, Gatley § 3.14. The starting point is that the Judge’s function is to limit the range of meanings of which the words are capable and to rule out any meanings outside that range, this being “an exercise in generosity, not in parsimony”, per Sedley LJ in Berezov-sky v. Forbes [2001] EMLR 45 at § 16. The jury’s role thereafter is to decide what meaning within the permissible range the words actually bear. “The Court should give the article the natural or ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical readers should not be treated as either naïve or unduly suspicious. They should be treated as capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The Court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or ac-counts. Judges should have regard to the impression that article has made upon them themselves in considering what impact it would have made on the hypo-thetical reader. The Court should certainly not take a too literal approach to his task.” per Eady J in Gillick v. Brook Advisory Centres, described by Lord Philips MR on appeal as constituting an “impeccable synthesis” of the authorities [2001] EWCA Civ 1263 § 7. Bane & Antidote ———- Antidote & Bane Finally, the words complained of must be taken in context and the bane taken with any surrounding antidote. This “bane & antidote theory” is merely a vivid way of stating that the whole publication must be considered, not a segment of it. It is unlikely that the mere printing of a denial will ever constitute an antidote sufficient to neutralise the bane. Gatley § 32.5 and footnote 19. “The natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyers’ first rule of construction is that words are to be given their natural and ordinary meaning as popularly un-

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derstood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman’s capacity for implication is much greater than the lawyer’s. The law-yer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is defamatory.” per Lord Devlin in Lewis v. Daily Telegraph at 277.

Innuendo and meaning 1. Single meaning Rule: Gatley 3.22. 2. Natural and ordinary meaning “an innuendo however well concealed, that is capable of being detected and the language used is deemed to be part of the ordinary meaning’. Such an innuendo (sometimes described as an ordinary or popular innuendo and not being a true innuendo) must be pleaded in a sepa-rate paragraph which “will set out those innuendoes or indirect meanings which go beyond the literal meaning of the words, but which the pleader claims to be inherent in them: Lewis v. Daily Telegraph [1964] AC 234, per Lord Devlin at 279-280. “There must be added to the implications which a Court is prepared to make as a matter of construction all such insinuations and innuendoes as could reasonably be read into them by the ordinary man.” (Lord Devlin at p 280). “One must consider not what the words are, but what conclusion could reasona-bly be drawn from it, as a man who publishes such a document is answerable not only for the terms but also for the conclusion meaning which persons will rea-sonably draw from and put upon the document.” Per Cotton LJ in Capital & Counties Bank v. Henty (1880) 5 CPD 504, 536 approved in Cassidy v. Daily Mirror [1989] 2 KB 331. See also Slim v. Daily Telegraphy [1968] 2 QB 157, 172 – 175 per Diplock LJ. Such a conclusion might be for instance that a man who had entered a brothel had done so for an immoral purpose: Lewis, p 278. What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to beyond the words themselves, as where the Plaintiff has been called a thief and a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natu-ral and ordinary meaning: Lewis, p 258 per Lord Reid.

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Mitiori sensu At one time words were construed mitiori sensu, that is to say that the mildest meaning would be attributed to them even if that involved a forced and artificial construction. But this was described as long since superseded in 1807: Gatley 3.15. The question is what would the words convey to the mind of the ordinary rea-sonable fair-minded reader? The natural and ordinary meaning may also include implications or inferences, Jones v. Skelton [1963] 1 WLR 1362, 1371 (PC):

“The ordinary and natural meaning of words may be either the literal meaning or it may be implied or inferred or an indirect meaning; any meaning that does not require the support of extrinsic facts passing beyond the general knowledge but is a meaning which is capable of being detected and the language used can be a part of the ordinary and natural meaning. The ordinary and natural meaning may there-fore include any implications or inference which a reasonable reader guided not by any special but only by general knowledge, and not fettered by any strict legal rules of construction would draw from the words”. (Lord Morris at 1371).

So in Memphis Publishing v. Nichols, a Tennessee case from 1978, a newspaper statement that P had been shot by X’s wife when the wife found them together at P’s house was capable of imputing adultery to P. A true or legal innuendo on the other hand only exists where the extended mean-ing arises from facts passing beyond general knowledge, i.e. from extrinsic facts: Galtey 3.18. Pleadings The modern practice has been to require the Plaintiff in almost every case set out in his particulars of claim the defamatory meaning or meanings which it claims were borne or other publication of which it complains: Lucas-Box v. Newsgroup [1986] 1 WLR 146, Gatley § 26.20. This is really to facilitate Defendants in relation to a plea of justification. Per Lord Devlin in Lewis at p 281 “but I am satisfied that the pleading of an innuendo in every case where the defamatory meaning is not quite explicit is at least highly desirable.” This is now in England prescribed by the new CPR rules of 1998. “I do not mean that ingenuity should be expended in devising and setting out different shades of meaning. Distinct meanings are what should be pleaded, and a reasonable test to distinguish would be whether the jus-tification would be substantially different: Per Lord Devlin in Lewis 282. “It should be noted however that since the Defendant is entitled to justify any meaning which the words complained of are capable of bearing in their proper context, the Plaintiff does not necessarily restrict the scope of a plea of justification by keeping his pleaded meanings narrow: See Poly Peck v. Tral-

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ford [1986] QB 1000. Also Carlton Communications v. Newsgroup Newspapers Ltd [2002] EMLR 16 (CA).” Gatley § 26.22: I do not think that this should present any difficulty in practice. The pleader must ask himself whether he contemplated that evidence would be called in sup-port of the allegation. If he does, it is a legal innuendo, and if he does not, it is not. If he is in doubt , he can plead in two paragraphs, and then if at the trial his opponent agrees or the Judge rules that it is a matter of general knowledge, the legal innuendo can be dropped: Lord Devlin in Lewis at p 281. Evidence of meaning: Jury function Libel Act, 1792 As to evidence, where the Plaintiff relies on their natural and ordinary meaning, no evidence of their meaning is admissible or of the sense in which they were understood: “a well settled rule” (Diplock LJ and Slim v. Daily Telegraph) or of any facts giving rise to inferences to be drawn from the words used. It is for the jury to determine the sense in which the words were reasonably being under-stood by an ordinary man in the light of generally known facts and meaning of words. Gatley § 32.23. So the Plaintiff is equally subject to the same rule that he cannot be asked what he understood the words to mean unless there is a legal innuendo and hence extrinsic facts are necessary. Generally the plea and particulars of one legal innuendo cannot be discarded or abandoned or amended for another legal innuendo, although the Plaintiff may fall back on the natural or ordinary meaning of the words if he has pleaded and relied on such meanings: Holdsworth Ltd v. Associated Newspapers: Slim v. Daily Telegraph [1968] 2 QB 157. Bullen & Leake p 628 (1975). In borderline cases where a Plaintiff is not certain whether he should rely on the natural and ordinary meaning of the words complained of or on their true (or “legal”) innuendo, the best course is to plead in the alternative. So, Lord Devlin in Lewis v. Daily Telegraph at p 281 observed:

“I do not think that this should present any difficulty in practice. The pleader must ask himself whether he contemplates that evidence will be called in support of the allegation: If he does, it is a legal innuendo, and if he does not it is not. If he is in doubt, he can plead in two para-graphs; and then, if at the trial his opponent agrees or the Judge rules that it is a matter of general knowledge, the legal innuendo can be dropped.”

Such approach was recently approved by the Court of Appeal in Hong Kong in Oriental Press Group Ltd v. Next Magazine Publishing Ltd (No. 2) [2000] HKLRD L15.

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Save where he is permitted to amend the general rule is that a Plaintiff is bound by his pleading as to meaning, at least to the extent that he is not allowed a trial to contend that the words bear a more injurious meaning than that pleaded. Gen-erally he is allowed lesser injurious meanings as a fallback position, particularly where this has been pleaded. For an innuendo the rule is that the Plaintiff is pinned precisely to his pleaded meaning and proof of a lesser meaning will not assist him: Truth (NZ) Ltd v. Hol-loway [1961] WLR 997 (PC). Where a Plaintiff relies on an innuendo meaning he raises a cause of action which is distinct from that based on the natural and ordi-nary meaning: Grubb v. Bristol United Press [1963] 1 QB 309, 327, per Pearce LJ. Gatley § 28.24. *************** Jurisdiction In Shevill v. Alliance Presse SA [1995] 2 AC 18, only 236 copies out of a much larger circulation of 200,000 copies of France Soir were published in England, the Plain-tiff Englishman lived in Yorkshire, and the European Court of Justice in Luxem-bourg (Case C-68/93) [1995] 2 AC 18, held that the publication actionable in both France (under Article 2 of the Brussels Convention where the Defendant was domiciled) and by the special jurisdiction in England and Wales by Article 5.3 where the delict or harmful event occurred but that the damages in the English forum would be limited to those 236 copies. Importantly, where the laws of the Irish forum apply procedural and substantive English and Irish rules, such as presumption of falsity in libel, are crucial, as was subsequently expressly found by the House of Lords on return: [1996] AC 959. ************** Plaintiff ID Plaintiff identification is a question of fact for the jury and not one for withdraw-ing the action from the jury: Morgan v. Odhams Press Ltd [1971] 1 WLR 1239 at 1263 (HL); Gatley on Libel & Slander, 11th ed, 2008, § 34.19. See now Bradley v Inde-pendent Star Newspapers [2011] 3 IR 96 were Supreme Court directed retrial in plaintiffs favour: evidence of second publication admissible to identify unnamed plaintiff in first publication. Apology sufficiency It is of the essence of libel law and procedure that it is for the jury to decide upon the adequacy or sufficiency of any apology, Risk Allah Bay v. Johnstone (1868) 18 LT 620 per Cockburn CJ; Gatley § 31.2.

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Finally, the words complained of must be taken in context and the bane taken with any surrounding antidote. This “bane & antidote theory” is merely a vivid way of stating that the whole publication must be considered, not a segment of it. It is unlikely that the mere printing of a denial will ever constitute an anti-dote sufficient to neutralise the bane. Gatley § 32.5 and fn 19. ********************************* Comment The difference between Tse Wei Chun Paul v. Albert Cheng [2001] EMLR 31 and London Artists Ltd v. Littler [1969] 2 QB 375, is that the plea of privilege, while it was upheld so far as publication to the actual players and actors was concerned, was rejected in relation to the press conference and publication to the world at large. Against that ruling by Cantley J in the High Court [1968] 1 WLR 607 there was no appeal; see [1969] 2 QB 375 at 381C. The plea of fair comment in London Artists failed precisely because the Defendant had persisted in the elaborate justi-fication of the conspiracy plot and then been forced to withdraw it at the conclu-sion of the evidence, which left the sole last defence of fair comment in a frail un-supported position and so the Court of Appeal in an unreserved judgment (387D) found that it had not passed the test and because the damages had been low (393E) the Court of Appeal would not order a new trial. London Artists case concerned the premature termination of The Right Honourable Gentleman at Her Majesty’s Theatre in the West End, was clearly a matter of pub-lic importance (overruling on that issue also the Trial Judge) and the same has to be said here of the new extended version co-authored by querist and Roddy Doyle and its centenary production in the Abbey Theatre or elsewhere in Ireland. Fact or opinion? Honest opinion is defeated if any of the words are taken to be statements of fact rather than mere opinion or comment. There is curiously very little agreement as to how to distinguish a statement of fact from one of comment or opinion. The law has been in a considerable state of flux here, the more recent authorities in the last 10 or 15 years, much more favouring width and breadth in the defence for freedom of comment, fair or honest comment or opening. In England and Wales and really in the rest of the common-law world we have seen the devel-opment of media privilege drawing upon Reynolds v Times Newspapers Ltd [2001] 2 AC 127. This has been taken on board, initially obiter, in Irish law but substan-tially enacted by s 26 of the Defamation Act, 2009. An important part additionally has been played certainly in England and Wales, but also here in Ireland, by the European Convention on Human Rights, and leg-islation in England in 1998 and in Ireland the Human Rights Act, 2003. This is based upon Convention Article 10, freedom of expression, and Article 8, right to privacy and the balancing of both. In relation to fair comment, now honest opinion, the changes have been particu-larly remarkable. The leading cases now are:

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Paul v Cheng [2001] EMLR 31 decision of the court of Final Appeal of Hong Kong (Lord Nicholls of Birkenhead NPJ) Joseph v Spiller [2011] 1 AC 552-90, Supreme Court of England and Wales (Lord Phillips of Worth Matravers PSC). Former law The traditional law was that an imputation of dishonesty or improper motives was a statement of fact, and was never reckonable as mere a comment. Therefore if the defendant was not to climbdown, retract, make expressions of regret and apologise he had to justify the imputation. The traditional way of expressing it appeared in Salmond & Heuston on the Law of Torts, 19 edition 1987 p 205:

“A man’s moral character is not permissible subject of adverse comment, and this is so even though the person attacked occupies a public position which makes his character a matter of public interest. He who says or sug-gests that a person is dishonest, corrupt, immoral, untruthful, inspired by base and sordid motives, must either justify his accusation by proving to be true, or show that the imputation is a correct inference from the facts com-mented on. It may be fair comment

• mistakenly to accuse an author of folly, • but not to accuse him of vice;

• of want of dignity, • but not of want of honesty;

• of incapacity, • but not of corruption;

• of bad taste, • but not of mendacity.

This important limitation upon the right of criticism was established in Campbell v Spottiswoode (1863) 3 B & S 769 in which it was held actionable to suggest, however honestly, that the editor of a religious magazine, in advo-cating a scheme for missions to the heathen, was in reality an impostor in-spired by motives of pecuniary gain. Such comment goes outside the realm of criticism of the plaintiff in relation to the book, its subject matter, or the plaintiff as an author. “A writer in a public paper," said Sir Alexander Cockburn CJ, “may comment on the conduct of public men in the strongest terms; but if he imputes dishonesty, he must be prepared to justify.” Such a personal attack, therefore, is to be regarded as a defamatory statement of fact, and not as a mere comment.”

As Sir Alexander Cocburn CJ said, “To say that you may first libel a man, and then comment upon him is obviously absurd”: R v. Carden (1879) 5 QBD 1, 8. The way the law has developed over the last 15 years or so is now been possible for Duncan and Neill on Defamation third edition 2009 to write authoritatively ¶ 13.16:

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“Allegations about a plaintiff which, by their very nature, cannot be veri-fied by another person but only established by inference (for example, statement about the plaintiffs state of mind or motives) are likely to be classed as comment. “Where a journalist draws such an inference about a state of mind which she cannot, in the nature of things, verify, then it will generally be clear to any reasonable reader that it does not purport to be an objective statement of fact capable of verification.” Keays v Guardian News-papers Ltd [2003] EWHC 1567 ¶ 49. In Branson v Bower [2001] EMLR 800, 805 it was held that it would have been clear to any reasonable reader that the author could not have had direct knowledge of the claimant’s state of mind and, accordingly, that he must have been expressing his own views.

“There is a fundamental difference in kind between saying, as Mr Bower did in the Evening Standard, “Revenge rather than pure self-righteousness has motivated Richard Branson’s latest bid to run Britain’s lottery”, and alleging that someone has been raped… One is not permitted to seek shelter behind a defence of fair comment where the defamatory sting is one of verifiable fact.” (Eady J in Hamilton v Clifford [2004] EWHC 1542).”

Seachange Those cases of Branson v Bower, Keays v Guardian Newspapers, and the leading ap-pellate cases of Paul v Cheng and now Joseph v Spiller, against the background of media privilege in Reynolds v Times Newspapers Ltd, and against the background remarkable in itself of very much greater judicial consciousness and public awareness of the European Convention on Human Rights represent nothing less, on one view, than a fundamental sea change in defamation law and to which very substantial legislative amendment has been brought after over half a centu-ry in Ireland by the Defamation Act, 2009 replacing that of the Defamation Act, 1961. In general terms the Act of 1961 brought in many of the reforms enacted in England in 1952 based upon the Porter Committee of 1948. The Act of 2009 has brought in some of the changes of the English Act of 1996, such as considerably shortened limitation periods, e.g. for libel now reduced from six years to one year with a one-year extension for special cases. So Duncan and Neill on Defamation, third edition, 2009 observe at the opening of the chapter on Fair Comment:

“It is a defence of great importance and wide scope. … The purpose of the defence is to protect the expression of opinion on matters of public interest. English law recognises that expressions of opinion (comments) may be de-famatory, but, in contrast to a defence of justification in respect of a defama-tory statement of fact, the law does not require the defendant to satisfy the court that his comment was, objectively regarded, “right" or “correct”, but merely that it was a comment that he was in the circumstances entitled to make. An expression of opinion will generally qualify as fair comment if it satis-fies the following objective test: could any person, however prejudiced and

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obstinate, honestly express the opinion on the proved facts?… It is now clear that the test is always purely objective. Furthermore, it is clear the concepts of fairness, fair mindedness or reasonableness no longer have any place in the test.… The limits of the right of comment are therefore very wide indeed.”

The same authors do however go on to warn: ¶ 13.05: “Nevertheless it may be doubted whether English law has succeeded in avoiding the legal refinements against which Lord Denning MR cautioned (“it [right of fair comment] must not be whittled down by legal refinements.”). Some aspects of the defence remain unclear and defendants who have sought to defend their words as comment have, from time to time, found themselves embroiled in complex disputes a fact or law which suggest that, in practical terms, a defence of fair comment can sometimes be just as onerous as a defence of justification.” Paul v Cheng To give some idea of how this works in practice, in Paul v Cheng [2001] EMLR 31 there been a big public controversy upon imprisonment of a tour guide in the Philippines in controversial circumstances for drug-related offences. There was a public campaign for his release. This was eventually successful after five years; the plaintiff solicitor and the defendant activist had been involved in rival cam-paigns for his release. The plaintiff solicitor was also secretary or acting for the Hong Kong travel industry. The defendant suggested the released prisoner should sue his employer for the lost five years of wages and compensation since he had only been carrying out his employer’s wishes at the time of his arrest in the Philippines, but the plaintiff advised against this. At the phone in radio show the defendant cast aspersions on the plaintiff’s motives, his conflict-of-interest in advising the released prisoner against suing one of his other effective clients. The issue effectively was malice—- because the jury exonerated the radio station. Recovery by the plaintiff was reversed by the Hong Kong Final Court of Appeal and a new trial directed on the issue of malice. The case was heard against a backdrop, arguably, of free speech being especially prized in Hong Kong after the termination of its lease in 1997 from being a British protectorate colony, and reverting back to mainland China. It follows from the entirety of the appeal that — but for the issue of malice — the defendants should like the other exonerated defendant radio station have suc-ceeded on the fair comment issue. Joseph v Spiller More recently in Joseph v Spiller [2011] 1 AC 552 the House of Lords now styled Supreme Court engaged in an elaborate review of the law of fair comment which it preferred to style honest comment. Unlike Paul v Cheng which was post-trial, the issue here was pre-trial whether the defendant music agent was entitled to post on its website

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“following a breach of contract [the plaintiff music band] has advised… that the terms and conditions of contract hold no water in legal terms”

and whether in those circumstances a defence of honest comment was permissi-ble at all due to failure it was said to set out the full facts upon which the com-ment was based. In issue also was whether facts could be invoked before and af-ter the controversial website posting. The Supreme Court in England somewhat surprisingly came down vigourously in favour of the defence of honest comment and against a factual backdrop which might hitherto have been understood for defamation lawyers to have involved an issue of qualified privilege or no, and whether the publication was published to a wider class of people than was necessary, with the loss of privilege. The English Supreme Court in an elaborate analysis of the historical authorities after expressly pointing out ¶ 3 that "the history of the defence of fair comment is helpfully summarised by Paul Mitchell in Chapter 8 of The Making of the Modern Law of Defamation (2005).” That the decision under appeal turned upon proper analysis of Kemsley v Foot [1952] AC 345; [1951] 2 KB 34 (CA) where the allegedly defamatory words in an attack by Michael Foot on the Beaverbrook press was merely the headline LOWER THAN KEMSLEY a reference to the rival Kemsley press. Thus there were no facts upon which the commentator could base his comment alleged to be “fair”. Nor were there any facts by which the reader could “judge for himself”, a feature traditionally thought essential for fair comment. The English Supreme Court en-dorsed the Paul v Cheng judgment of 2001 with one important elaboration sub-stantially strengthening the defence of honest comment in practical terms.

“For these reasons I do not consider that Lord Nicholl’s fourth proposition in Cheng can be reconciled with Kemsley v Foot [1952] AC 345. [it] echoed what Fletcher Moulton LJ had said in Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 (see § 39 above) but each observation was obiter. There is no case in which a defence of fair comment has failed on the ground at the comment did not identify the subject matter on which it was based with sufficient particularity to enable the reader to form his own view as to its validity. For these reasons, where adverse comment is made generally or generical-ly on matters that are in the public domain I do not consider that it is a pre-requisite of the defence of fair comment that the readers should be in a po-sition to evaluate the comment for themselves.” (¶ 98)

Honest Opinion Section 20 (honest opinion) now replaces s 23 (fair comment) of the Defamation Act, 1961 (identical to s 6 of the English Defamation Act, 1952) has not much been

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construed by the Courts, probably for the reason that it has never really arisen at trial:

“In an action for libel or slander in respect of words consisting partly of al-legations of fact and partly of expression of opinion, a defence of fair com-ment shall not fail by reason only that the truth of every allegation of fact is not proved, if the expression of opinion is fair comment, having regard to such other facts alleged or referred to in the words complained of as are proved.”

However, the facts must be truly stated. The comment must not mis-state the facts: No comment can be fair which is built upon facts which are invented or mis-stated: Hunt v. Star Newspaper [1908] 2 KB 309; Kemsley v. Foot [1952] AC 345. So when in a play review the Defendant falsely stated that it contained an inci-dent of adultery, the plea of fair comment failed: Salmond & Heuston, p 203. While the law reformers in England in the Porter Committee of 1950 may have intended to give the publisher a wider protection, this is not in fact how s 6 of the English Defamation Act nor s 23 of the Irish Defamation Act, 1961, was enacted. Professor Heuston commented:

“This is certainly not what the Porter Committee intended, but it may be what Parliament intended, although whether it has succeeded or not in carrying the intention into effect is another matter. It is submitted that it has not, and the defence of fair comment still protects only the comment, and not unjustified statements of fact.”

To illustrate how fair comment failed, in London Artists v. Littler [1969] 2 QB 375, the Defendant impresario in a letter not covered by privilege alleged a conspiracy by the owners of Her Majesty’s Theatre, Haymarket, to associated companies, in-cluding the managing agents of his four star players to bring about by lawful no-tices of termination of their acting contracts, the modestly successful run of “The Right Honourable Gentlemen” and transferred to an associated theatre, The Lyr-ic, and effect a switch of play; but this allegation of unlawful conspiracy was es-sentially one of fact, and could not double up as fair comment. Now the Defamation Act, 2009 by a and entirely new section provides some guidance:

Distinguishing between allegations of fact and opinion. 21.— The matters to which the court in a defamation action shall have re-

gard, for the purposes of distinguishing between a statement consisting of al-legations of fact and a statement consisting of opinion, shall include the fol-lowing:

(a) the extent to which the statement is capable of being proved;

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(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 cau-tionary words.

Revisiting older authorities It is therefore in this context that many of the past decisions now require to be substantially we read. So in Quigley v Creation Ltd [1971] I R 269 the imputation was that the well-known actor Godfrey Quigley had left Ireland to take up better employment in England. How could this be defamatory? Well, that became a jury issue. In the background was that the article in Woman’s Choice Weekly was based upon an interview which was entirely false — because it had never taken place at all! The jury awarded £600. In the Supreme Court Walsh J emphasised the im-portance of jury evaluation and observed at 272-3:

In Fullam v Associated Newspapers Ltd [1955-56] Ir Jur R 45 the former Su-preme Court held that to write of a professional footballer in Dublin, who was extremely well known to the followers of Association football, that he never used his right foot in kicking a ball because he was unable to do so was capable of being defamatory when it was not true.” Arguably Fullam, for example, might now be decided differently and held not to be defamatory at all insofar as it is comment. Of course this must presuppose that there was no kicking at all, of any kind, good bad or indif-ferent, by the right foot, and that conceivably might be refuted by footage showing frequent use of the right foot or witness testimony to the same ef-fect. The point is that the relative ineffectiveness of the right foot is really in the nature of comment or conclusion.

It follows that Campbell v Spottiswoode might be decided differently in 2013 than the way it was in 1863. As Lord Nicholls pointed out in the Hong Kong case Tse Wei Chung v. Cheng [2001] EMLR 777, 782, § 18:

“Third, the comment must be based on facts which are true or protected by privilege: see for instance London Artists Ltd v. Littler [1969] 2 QB 373 at 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privileged occasion, the defence of fair comment is not available.”

Edmund Davies LJ at 395 in London Artists had pointed out:

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“Secondly, comment must be disentangled from fact, for fair comment is available as a defence only in relation to facts which are either: (a) true, or (b) if untrue, were published on a privileged occasion: see Mangena v. Wright [1909] 2 KB 958 and Grech v. Odhams Press Ltd [1958] 2 QB 275. Leaving aside privilege, which does not now arise for consideration, if the alleged facts relied upon as the basis for comment turn out to be untrue, a plea of fair comments avails the Defendant nothing, even though they expressed his honest view.” There are many Irish examples where answers to charges which do not go over the boundaries, either orally or in written addresses or in letters to newspapers have been held to be privileged, and the injured Plaintiff’s action dismissed: • Dwyer v. Esmonde (1878) IR 2 CL 243 (published newspaper letter in reply to

Plaintiff’s election address libelling Defendant Candidate as a bad landlord); • O’Donoghue v. Hussey (1871) IR 5 CL 124, (archdeacon and parish priest), where

Defendant’s conduct and character assailed in public newspaper, hence privi-leged riposte to write that his assailant was known to be a person in the habit of making mis-statements;

• Nevin v. Roddy [1935] IR 307: Defendant’s letter in Sligo Champion with defama-tory imputations against Plaintiff who had previously at public meeting of Sli-go Town Council made charges defamatory of the Defendant: occasion privi-leged, no malice. Action dismissed with costs, no retrial ordered by the Su-preme Court.

If Fact or Opinion for jury It is a question for the jury (subject to the direction of the judge) whether the words, on their true construction in their context, amount to a positive statement of fact or an expression of opinion or inference. If they are the former they must be justified. If the Defendant cannot justify them, then the only issue for the jury is the amount of damages, as in London Artists v. Littler [1969] 2 QB 375.” Salmond & Heuston, p 201. Contrast, therefore:

Hentys & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank. [1882]

“following a breach of contract [the plaintiff music band] has advised… that the terms and conditions of contract hold no water in legal terms” [2012]

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The first, after jury trial, was found to be incapable of defamatory meaning (de-spite a run on the bank of £250,000), and so should have been withdrawn from jury verdict. The second, before any trial, 140 years later, is capable of being honest comment, hence not defamatory, even though the underlying substratum was omitted — unless malice be proved. ************************* Justification Section 16 of the Defamation Act, 2009 (truth) replaces s 22 of the Act of 1961, identical to s 5 of the English Defamation Act, 1952, essentially provides

“In a defamation action in respect of a statement containing 2 or more dis-tinct allegations against the plaintiff, the defence of truth shall not fail by reason only of the truth of every allegation not being proved, if the words proved to be true do not materially injure the Plaintiff’s reputation having regard to the truth of the remaining allegations.”

“A justification of the libel on the ground of truth must be pleaded specially. It should not be pleaded without good reason to expect that it will be proved. It is the duty of counsel not to put a plea of justification on the record unless he has clear and sufficient evidence to support it. If it is pleaded upon insufficient grounds the fact of the Defendants thus persisting in the charge is evidence of malice and should be taken into account in increasing the damages.” (Bullen & Leake, 1179) A plea of justification must be strictly proved at the trial. It is no defence that the libel had previously been made by another; that the Defendant at the time of publishing stated the source from which he received and then believed it to be true is of course also no defence. Not too much is to be read into s 16 of the Defamation Act, 2009. Here, if the De-fendant proves the essential sting of the libel, he may be exonerated. However, the illustrations show how narrowly this type of defence has in fact been used as in Alexander v. NE Railway (1865) 6 B & S 340, a statement that the Plaintiff had been convicted of travelling in a train without a ticket and had been fined £1 with 3 weeks imprisonment in default of payment was held capable of being sufficient-ly justified by proof that he had been fined £1 for that offence with a forthnight’s imprisonment in default of payment. Generally what a Plaintiff then does is to disregard the sum of the charges and sue in respect only of those which are most favourable to his case: Speidel v. Plato Films Ltd [1961] AC 1090 (former Serbian alleged war criminal). The Faulks Committee recommended a change (Com-mand 5909), § 134. If Fact or Opinion for jury

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It is a question for the jury (subject to the direction of the judge) whether the words, on their true construction in their context, amount to a positive statement of fact or an expression of opinion or inference. If they are the former they must be justified. If the Defendant cannot justify them, then the only issue for the jury is the amount of damages, as in London Artists v. Littler [1969] 2 QB 375.” Salmond & Heuston, p 201. Meaning By s 14 of the Act of 2009 the court upon a notice of motion may give a ruling – as to whether the statement in respect of which the action was brought is reason-ably capable of bearing the imputation pleaded by the plaintiff, and (where the court rules that the statement is reasonably capable of bearing the im-putation) as to whether the imputation is reasonably capable of bearing a defam-atory meaning. On the other hand by subsection (2) if the court should rule that the statement respect of which the action was brought is not reasonably capable of bearing the protection pleaded by the plaintiff, or that any imputation so pleaded is not reasonably capable of bearing a defamatory meaning, it shall dismiss the action in so far as it relates to the petition concerned. Trial on a preliminary point of law Before the introduction of the Civil Procedure Rules in England, preliminary is-sues in libel included: Whether a trade union or local authority could sue in libel; Whether the report of an official receiver made to the Court was absolutely privi-leged: Bottomly v. Brougham [1908] 1 KB 584; Whether the words complained of were capable of bearing a particular meaning: Keays v. Murdoch Magazines [1991] 1 WLR 1184 (CA); Where a Plaintiff relies on an innuendo meaning he must plead particulars of the facts and matters on which he relies in support of such sense and notionally these are to be pleaded separately for each several legal innuendo: Gatley § 28.22. These facts or matters will generally incorporate facts extrinsic to the libel which, if known about, affect the way the words complained of are understood. Since the cause of action arises when the words are published, the extrinsic facts must be known to the readers of the publications at that time: Gatley, § 28.22 fn 89.

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Order 1B, rule 10, RSC (formerly Order 36, r 36 of the RSC, 1986) provides:

“In actions for defamation in which the Defendant does not by his De-fence insert the truth of the statement complained of, the Defendant shall not be entitled at the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances in which the defamation was published, or as to the character of the Plaintiff, without the leave of the Judge, unless 7 days at least before the trial he furnished particulars to the Plaintiff of the matters as to which he intends giving evidence.

What this rule does prevent however is giving evidence in chief by the Defendant or through his witnesses of any matter not previously notified to the Plaintiff. The Defendants are still bound by the rules of evidence. To mitigate damages they may only give evidence of general reputation, not specific incidents. It may seem anachronistic that evidence of a general reputation for dishonesty may be tendered but not, e.g. that the Plaintiff cheated at a single game of cards or in her Leaving Certificate examination, but that is the way it is. “Even in mitigation or damages it is well settled that you cannot go into evidence which, if proved, would constitute a justification. [i.e. truth of the libel alleged]. Nor does it appear to me that it makes any difference that the evidence is offered in cross-examination”: Watt v. Watt [1905] AC 115, 118 per Lord Halsbury LC, referred to in Hobbs v. Tinling [1929] 2 KB 1, 50. The rule has not altered the common law as laid down in Scott v. Sampson (1882) 8 QB D 491, 503, that only general evidence of the Plaintiff’s reputation, but specifi-cally not evidence of facts to show his character, may be admitted in mitigation of damages: Mangena v. Wright [1909] 2 KB 958, 979; Plato Films v. Speidel [1961] AC 1090. This long established rule was again specifically recognised by the Supreme Court in Browne v. Associated Newspapers [2001] 1 IR 521. Ever since Rowton (1865) 1 L & C 520, “character” here means reputation rather than just disposition: People ( DPP) v. Ferris [2008] 1 IR 1. So in Associated Newspapers v. Dingle [1964] AC 371, Lord Denning observed at 412, “Nor can the report of a single incident, even it be notorious, be brought up against the Plaintiff.” These were all libel appeals.

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Responsible journalism

Section 26 of the Defamation Act, 2009, but for this separately to be given any opportunity of succeeding it will help, in my view, to show that there is over-whelming “antidote” with the relatively small “bane” to help show that this was re-ally more in the nature of a slip up and which did not warrant the same level of detailed vigilant investigation and cross-checking and so should be protected in the alternative by s 26.

The leading authorities on meaning and public interest privilege are in part: Lewis v Daily Telegraph Ltd [1964] AC 234 (fraud squad investigation sting) Slim v Daily Telegraph Ltd [1968] 2 QB 157 Reynolds v Times Newspapers [2001] 2 AC 127 Jameel v Wall Street Journal [2007[ 1 AC 359 Bonnick v Morris [2003] 1 AC 300 Chase v News Group Newspapers [2003] EMLR 218 (suspicion sting) Thoma v Luxemburg (2003) 36 EHRR 359 Selistö v Finland (2006) 42 EHRR 144 Leon v Edinburgh Evening News [1909] SC 1014 Charman v Orion Publishing Group Ltd [2008] 1 All ER 750 (CA) Seaga v Harper [2009] 2 AC 1 (any medium, not just press or broadcast) Flood v Times Newspapers [2012] 2 AC 273; EMLR 21 Trial “In the result, a libel action may resolve itself into a tactical battle in which the defendant adopts such manoeuvres as are likely to force the plaintiff into a posi-tion where he is compelled to go into the box and give some evidence – however little – in chief, so that there may be put to him in cross-examination as to credi-bility the very questions which are inadmissible in cross-examination on mitiga-tion of damages under the rule in Scott v Sampson (1882) 8 QBD 491”. Porter Committee on Defamation (1948) § 151. Salmond & Heuston on the law of torts 21st ed 1996, 632. Scott v Sampson was affirmed by the Supreme Court in PJ Browne v Sunday News-papers [2001] 1 IR 151. Parliament in England however did not change the law, see Faulks Committee Report (1975) § 346. Nor was the law changed in Ireland by the Defamation Act, 2009 which requires instead an affidavit of verification to be sworn by the plaintiff and defendant. Credit and Credibility Law on the introduction of previous convictions and cross-examination relating to previous convictions and/or evidence adduced by the Defence as to previous convictions, while this is introduced on the footing of impeaching the credit of

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the Plaintiff as witness. Section 6 of the Criminal Procedure Act, 1865 (Lord Denman’s Act which applies equally to civil proceedings) expressly provides:

“A witness may be questioned as to whether he has been convicted of any felony or misdemeanor and upon being so questioned, if he either denies or does not admit the fact or refuses to answer it, it shall be law-ful for the cross-examining party to prove such conviction; …”

7. This means that if a plaintiff were to admit each conviction, especially those that he had pleaded guilty to, this would debar the Defence from adducing their own evidence on the issue. His denials should be sufficient: P.J. Browne v. Tribune Newspapers plc [2001] 1 IR 521 (SC). 8. The authorities on cross-examination as to credit and the inadmissibility of evidence as to bad character and the proof thereof by specific incidents as op-posed to general reputation are as follows: Rowton (1865) 1 L & C 520; Scott v. Sampson (1882) 8 QBD 491 (CA), Cave J, Mathew J concur; Watt v Watt [1905] AC 115, 118, Lord Halsbury: nor admissible by Crossexam Hobbs v Tinling & Co [1929] KB 1, 18,Scrutton LJ Plato Films v. Speidel Ltd [1961] AC 1090; Assoc Newspapers v. Dingle [1964] AC 371, 412 (Lord Denning); Goody v. Odhams Press Ltd [1967] 1 QB 333 (CA) previous convictions; Browne v. Tribune Newspapers [2001] 1 IR 521; Kavanagh v. The Leader (1955) (reprinted at the end of Browne v. Tribune News-papers); Burstein v. Times Newspapers [2001] 1 WLR 579 (CA); People (DPP) v. Ferris [2008] 1 IR 1, endorsing Rowton (1865). It has ever been the case from Rowton (1865) that “character” means reputation rather than disposition, hence evidence may only be given of general reputation and not of particular acts by which reputation or disposition is shown. Affirmed recently by the Court of Criminal Appeal in People (DPP) v. Ferris [2008] 1 IR 1 (Fennelly, Lavan and Abbott JJ). So, in Plato Films v. Speidel Ltd [1961] AC 1090, 1124, Lord Radcliffe expressed the isolated view that:

“It would be wrong to hold that general evidence of reputation … cannot include evidence citing particular incidents, if they are of suffi-cient notoriety and be likely to contribute to his current reputation on the footing that “such incidents are after all the basic material upon which the reputation rests.”

11. However, Gatley points out, § 35.32 (11th ed, 2008) that this view was not endorsed by any of the other law lords. Lord Radcliffe again attempted the same view in Associated Newspapers v. Dingle [1964] AC 371, 399-400, ‘It may be still that

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in a proper case a man’s bad reputation can be proved by giving evidence of some incident of notoriety’ although we acknowledged that the law may have confined itself to such “hazy generalities as ‘a well known pick-pocket’ or a ‘no-torious prostitute.’” 12. In Dingle Lord Denning observed at p 412 “nor can the report of a single incident, even if it be notorious, be brought up against the Plaintiff.” 13. Commenting on s 6 of the Criminal Procedure Act, 1865 (although Ireland does not have Rehabilitation of Offenders Act), Archbold at 8-152 comments:

“Notwithstanding the terms of s 6 it does not confer an absolute right to cross-examine as to previous convictions; such cross-examination is subject to a degree of judicial control; see the observations of Lawton LJ in R v. Sweet-Escott (1971) 55 Crim App R 316 at 319-20.

Evidence of character “Evidence of the prisoner’s good character is always admissible on his behalf in criminal courts. Yet, evidence of his bad character is usually excluded there; and in civil proceedings all evidence of character is excluded.” Kenny’s Outlines of Criminal law, 12th edition (1926) p 397.

“When a party’s general character is in issue [i.e. on express plea of justification] proof must necessarily be received of what that general character is, or is not. Thus, in a libel action, the question being whether a governess was ‘competent, ladylike and good tempered’ while in her employer’s service, witnesses were al-lowed assert or deny her general competency, good manners and temper: Foun-tain v. Boodle (1842) 3 QB 5; and in such cases particular incidences are also ad-missible, whether occurring prior or subsequent to the publication of the libel: Maisel v. FT (No. 1) (1915) 112 LT 953 (HL). … Where however character is ten-dered in proof or disproof of some other issue, it is, in general, even though logi-cally relevant, excluded. This rule applies equally both to criminal and civil cases, but is of greater importance in the former (to which in the main this discussion is directed) not only because of the frequency with which it comes before the courts but because the liberty of the Accused may be at stake.” Phipson on Evidence (10th edition (1964) §§ 521 and 523, p 229. However, unless rebutting a plea of justification, its relevance (evidence of good character) would relate to damages, for which see Order 36 rule 36 RSC, 1986), and the evidence should be directed at the Plaintiff’s good character or reputa-tion and should not include particular instances of good conduct. In the absence of a plea of justification the Plaintiff cannot lead evidence as to his enhanced or undiminished reputation at the time of trial: Gatley, § 32.54. There can be no doubt that where the Defendant has imputed that the general character of the Plaintiff is bad, the Plaintiff can adduce evidence of his general good character, but just as the Defendant cannot cite particular incidents of the Plaintiff’s misconduct to diminish the damages, so the Plaintiff cannot give evi-

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dence of particular facts in support of his claim to have a good character. Gatley § 32.55. Thomas Murphy and Patrick Murphy v Times Newspapers [1996] 1 IR 169, 178 Two brothers Thomas and Patrick Slab Murphy sued— by separate actions — for a 1985 Sunday Times article that one man was a prominent member of the IRA and involved in directing a bombing campaign against 12 seaside resort towns. the newspaper amended its defences to plead justification. Lynch J tried both ac-tions heard together, Thomas got damages of nil and Patrick £15,000. The Su-preme Court directed retrial. Barrington J The defendants, as was their right, ran two parallel defences in this case. The first was based on partial justification and was concerned with the quality of the plaintiffs as human beings. The defendants suggested that the plaintiffs were men of violence and members or supporters of the Provisional IRA. The second was concerned with the plaintiffs' reputation or standing in the community and suggested that the plaintiffs' reputation or standing in the community was so low that the article did them little or no damage. Both defences are concerned with questions of fact and once evidence was properly adduced in support of either defence the jury was entitled to consider it. The problem is that evidence which would support the conclusion that a man had a bad reputation in the community would not necessarily support, or even be admissible to support, a plea of justifica-tion. To put the matter in the simplest of terms a lay witness might make three state-ments concerning a doctor. He might say:— (1) He is a very good doctor. (2) He has the reputation of being a very good doctor. (3) In my opinion he is a very good doctor. The first two statements both purport to be statements of fact and may either be true or false. But the second statement is not admissible in evidence as proof of the first statement and the third statement is purely subjective and is not proof of anything. Witnesses called to give evidence as to a person's standing in the community are sometimes asked their own opinion of the man. This is fairly harmless as the wit-ness would hardly come to court unless he shared what he claimed was the gen-eral view of the man's standing in the community. A number of the plaintiffs' witnesses (including a retired S.D.L.P. County Coun-cillor, the secretary of the local football club, the local teacher, the local veterinary surgeon and a priest) testified not only to the plaintiffs' standing in the local community but also gave their own opinion concerning them. The local T.D., Mr. Brendan McGahon, called by the defendants, swore that the plaintiffs had the reputation of having links with the Provisional IRA and made quite clear that that was his opinion also.

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Inspector Trenty, of the Garda Síochána, was unable to say what the standing of the plaintiffs was with their neighbours but stated that members of the Gardaí were satisfied that they were engaged in subversive activity on behalf of the Pro-visional IRA. Brigadier Peter Morton was called to give evidence in the absence of the jury as to the light in which the plaintiffs were seen by a British Army Unit serving on the border. Mr. McKenna, on behalf of the plaintiffs, objected to Brigadier Morton giving evidence to the jury on the basis that his evidence was no more than opin-ion evidence based on hearsay. The trial judge, ruling against Mr. McKenna,… On Thomas’s retrial, directed on application to be tried before Patrick’s, the plea of justification was sustained with a nil verdict and his action dismissed. Objec-tion was then taken at the start of Patrick’s jury trial to the plea of justifica-tion,with some 11 episodic particulars, that since the Sunday Times had already succeeded against Thomas in convincing the first jury of the truth by justification, they could not do so on the second trial, as an abuse of the process of the court. O’Higgins J at first instance rejected the objection and was upheld by the five judge Supreme Court: [2000] 1 IR 522, where Barron J observed at 532

The plea of justification in an action for defamation is a plea that what has been al-leged by the plaintiff to be false in relation to him or her is in fact true. In an action for defamation the plaintiff does not put his or her whole reputation in issue. … The plaintiff in order to succeed in an action for defamation must establish • that the published statement has been understood to refer to him or her, • and that it held him or her up to hatred, ridicule or contempt. • The falsity of the statement is presumed. The defendant can defend by putting the plaintiff on proof of the matters to be estab-lished by the plaintiff, but may also allege the truth of the statement. If so, such truth must be established by the defendant. … The defendants are deprived by the principles of law enunciated in E. Hulton and Co. v. Jones [1910] A.C. 20, of a defence that they did not intend to refer to the plaintiff, but there is nothing which deprives them of the right not only to put the plaintiff on proof of his averments but also to show that what is prima facie said to be false of the plaintiff is in fact true of him. The plaintiff, in effect, says his reputation has been damaged by your statement. The defendant can defend on the basis

• that the statement could not have been understood to refer to the plaintiff, • or if it did that it did not hold him up to hatred, ridicule or contempt; • or if it did that it was true.

It is only the latter plea with which we are dealing. As a consequence, it is not what the defendant stated nor, unless malice is pleaded, what was intended which is at issue. It is the effect of what was stated so that the is-sue is whether the reputation has been damaged in the way claimed. It is not a question of who did the defendant intend to refer to. The issue, once justifi-cation is pleaded, is, are the meaning or meanings of which the plaintiff complains true or false in relation to the plaintiff. So it is immaterial that the same statement may have been claimed by someone else to have referred to him and equally imma-terial that in an action brought by such person the defendant pleaded that if the

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statement could be understood to have referred to that other person it was true of him. In E. Hulton and Co. v. Jones [1910] A.C. 20, the article was written about a supposed-ly fictitious person. Nevertheless, a real person maintained that it was understood to have referred to him and that it was false. He succeeded. In the present case the plaintiff submitted that since the article only referred to one person, the defendants could not say that it referred to two different persons. He fur-ther submitted that by doing so the purported defence was an abuse of process.

There is no substance in these submissions. The first is clearly refuted by E. Hulton and Co. v. Jones [1910] A.C. 20 and the principles to which I have referred. The second deals with the wrong issue. The issue in the present case is whether the plaintiff's reputation has been damaged in the way which he claims. That issue has not been decided before. What has been decided is an identical issue in relation to the plain-tiff's brother and it is immaterial that such issue was decided in favour of the de-fendant just as it would have been immaterial if it had been decided in favour of the plaintiff's brother. The cases which have been cited in relation to abuse of process re-late to a different situation. They relate to a case where a party makes a particular case on the facts which is not accepted. In such circumstances, it is an abuse of pro-cess to attempt to set up the same facts in a different action. The significance of the issue in the instant case relates to the nature of the evidence which the defendants may call in their defence. A defendant who pleads justification is entitled to adduce evidence to prove the truth of the meanings or imputations complained of, but cannot adduce evidence of other aspects of the plaintiff's reputa-tion. If the defendant cannot justify, such defendant not only cannot call evidence to establish specific matters but also cannot call evidence as to the plaintiff's reputation in relation to such matters. Such defendant is limited to calling evidence of general reputation in relation to the area in issue.

It has long been regarded as established law that in the absence of a plea of justi-fication the Defendant cannot in order to mitigate damages, give evidence of any facts which would tend to prove the truth of the libel. Nor could he achieve that purpose by cross-examination as to such facts, even if he expressly disavows a justification, and states that he tenders the evidence merely in mitigation of dam-ages: per Scrutton, Greer and Sankey LJJ in Hobbs v. Tinling [1929] 2 KB 1, 18, 39 and 50.

“Even in mitigation of damages it is well settled that you cannot go into ev-idence which, if proved, would constitute a justification. Nor does it ap-pear to me that it makes any difference that the evidence is offered in cross examination”. per Lord Halsbury LC in Watt v. Watt [1905] AC 115, 118.

Aggravated damages The authorities for entitlement to aggravated damages: Conway v. INTO [1991] 2 IR 305; (unlawful NT stroke) McIntyre v. Lewis [1991] 1 IR 121 (malicious prosecution) Cooper v. O’Connell, Unreported Supreme Court, 5th June 1997;

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Philp v. Ryan [2004] 4 IR 241 (failing to disclose crucial doctored record) Swaine v. OPW [2003] 1 IR 521 (mesothelioma threat in Leinster House); Shortt v. Garda Commissioner [2007] 4 IR 587; Daly v. Mulhern & MIB [2008] 2 IR 1 (O’Sullivan J, RTA, false denial of impact). Scott v Sampson LRC 1991 Conusltation Paper Ø Gatley 11th ed 2007, §35.30-41 Duncan & Neill 3rd ed 2009 § 23.19-23 Pleadings “It should be noted however that since the Defendant is entitled to justify any meaning which the words complained of are capable of bearing in their proper context, the Plaintiff does not necessarily restrict the scope of a plea of justification by keeping his pleaded meanings narrow: See Poly Peck v. Tral-ford [1986] QB 1000. Also Carlton Communications v. Newsgroup Newspapers Ltd [2002] EMLR 16 (CA).” Gatley, § 26.22: 12. I do not think that this should present any difficulty in practice. The pleader must ask himself whether he contemplated that evidence would be called in support of the allegation. If he does, it is a legal innuendo, and if he does not, it is not. If he is in doubt , he can plead in two paragraphs, and then if at the trial his opponent agrees or the Judge rules that it is a matter of general knowledge, the legal innuendo can be dropped: Lord Devlin in Lewis at p 281. 13. As to evidence, where the Plaintiff relies on their natural and ordinary meaning, no evidence of their meaning is admissible or of the sense in which they were understood: A well settled rule (Diplock LJ and Slim v. Daily Telegraph) or of any facts giving rise to inferences to be drawn from the words used. It is for the jury to determine the sense in which the words were reasonably being under-stood by an ordinary man in the light of generally known facts and meaning of words. Gatley § 34.26. 11th ed 2007 So the Plaintiff is equally subject to the same rule that he cannot be asked what he understood the words to mean unless there is a legal innuendo and hence extrinsic facts are necessary. Generally the plea and particulars of one legal innuendo cannot be discarded or abandoned or amended for another legal innuendo, although the Plaintiff may fall back on the natural or ordinary meaning of the words if he has pleaded and relied on such meanings: Holdsworth Ltd v. Associated Newspapers: Slim v. Daily Telegraph [1968] 2 QB 157. Bullen & Leake p 628 (1975). *******************

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Evidence at trial Useful to summarise general evidential rules for libel trials: Ordinary meaning of the words: “no evidence admissible”; Natural or popular innuendo of the words, § 7, “no evidence admissible”; if ex facie defamatory, falsity will be presumed: Shevill v Press Alliance [1996] AC 996 Plaintiff’s own interpretation are words inadmissible unless relating to the ex-trinsic facts; Evidence of malice may be led by Plaintiff and addressed in chief, e.g. inclusion of irrelevant material to words protected by privilege, Gatley § 34.40, 11th ed. Al-so as to Defendants’ conduct in litigation and at trial, including refusal to clarify or apologise. Injury to feelings, evidence admissible; Evidence of slagging and jeering, etc; Evidence of Plaintiff’s good character irrelevant unless put in issue; see Order 36 rule 36 RSC, no entitlement of defendant to lead evidence in chief unless at least seven days before trial particulars of evidence to be led furnished Costs Defamation cases can come on very quickly for trial accuracy and speed of action the most important pleadings can be surprisingly short very often discovery irrelevant and not sought newspaper circulation figures are normally (readily) agreed €50,000 circuit Court jurisdiction recoverable part in part costs tax double for counsel letter prior to action settled by counsel recoverable preliminary letters require high-level of compositional skill jury normally gets to hear the pre-trial letter skirmishing Trial procedure jury verdict 9:3 must have same components for quantum as liability: Courts of Justice act, 1924, s 95 order of speeches giving of evidence on defence side Acts Fox’s Libel act, 1792 libel act, 1843 libel act 1845 newspaper libel and registration act, is 81 1881

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law of libel Amendment act defamation act 1952 (E & W) defamation act 1951 1961 defamation act 1986 1996 (E & W) defamation act 2009 defamation act 2013 (E & W) RSC (Defamation) 2009 (No 511) EC directive 2000/31/EC SI 68 of 2003 Useful books Salmond & Heuston on the law of torts, 19th edition 1987 Collins on Defamation, 2014, OUP Collins, Law of Defamation and Internet, third edition 2010, all you be OUP Duncan and Neil on Defamation third edition 2008 MacDonald, Irish or defamation, second edition 1991 Gatley on libel and slander 12th edition 2014 Cox and McCullough, Defamation, Law and practice 2014 Mitchell, Paul, the making of the Modern Law of Defamation (2005) Dean, hatred ridicule or contempt, a book of libel cases, 1953 Porter committee (1948) command 7536 Faulks Committee (1975) Cmnd 5909 Neill Committee (1991) command XYZ Law reform commission consultation paper on the civil of Defamation (1991) Refutations No libel if disbelieved: Newstead v London Daily Express [1940] 2 KB 331

No libel sans negligence: McCormack v Olsthoorn

Reader must understand defamatory meaning: No, 12 jury members must

Innuendo is for the reader: No, 12 jury members

What the reader thought not inadmissible: No, what 12 jury members think

Plaintiff’s character fair game: Murphy v Sunday Times [1996] IR 1 IR 169

Libel not a strict liability tort: Hulton v Jones

No libel if publisher meant well: Hulton v Jones

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The greater the truth the greater the libel: Criminal libel, abolished 2009

Libel must impute some wrong to the Plaintiff: Youssoupoff v MGM Pictures Ltd

(1934) 50 TLR 581