THE SUPREME COURT
PLAINTIFF / APPLICANT
SUNDAY NEWSPAPERS LIMITED TRADING AS THE SUNDAY WORLD
DEFENDANT / RESPONDENT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court grants leave to the Defendants/Applicants to appeal to this Court from the Court of Appeal
1.1. This determination relates to an application by Martin McDonagh (“the applicant”) for leave to appeal under Article 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Kelly J., Irvine J., Hogan J.) delivered on 19th October, 2015. The order appealed against was made on the 16th November, 2015 and perfected on the 25th November, 2015.
1.2. As is clear from the terms of the Constitution and many determinations now made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance, or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.
2. The Proceedings
2.1. The proceedings herein concern an action for libel brought by the applicant against the respondents, Sunday Newspapers Limited. In the High Court, the jury awarded the applicant the sum of €900,000 in damages for libel, published in the Sunday World Newspapers, for having alleged that he was a drug dealer, and loan shark.
2.2. The High Court jury found (a) that the respondent had not proved that the applicant was a drug dealer; (b) that the respondent had not proved that the applicant was a loan shark; however, it also found (c) that the respondent had proved that the applicant was a tax evader; (d) that the respondent had proved that the applicant was a criminal. The applicant submits that, despite the jury’s findings on (c) and (d), there had nonetheless been a finding that his reputation had been materially damaged and he was entitled to damages.
2.3. The Court of Appeal order is to be seen as having three “operative parts”. The applicant now submits that the Court of Appeal erred in allowing the appeal against (a) above, that is, that part of the verdict (‘the first operative part’), and addressing drug dealing, and instead dismissing that claim entirely; and in holding that the plaintiff’s claim in relation to (b) the allegation of loan sharking be remitted to the High Court for a retrial (the second operative part). It is further submitted that the Court of Appeal erred in directing that the applicant repay the respondents the sum of €90,000 paid out on foot of the High Court order (the third operative part of the Court of Appeal order).
2.4. The respondent submits that the Court of Appeal decision was in accordance with law, as identified below, and also was no more than an application of accepted principles of both the law of libel, and also the rule in Browne v. Dunn  6 R 67, addressed in recent decisions of the High Court, and an earlier decision of this Court.
3. The Order appealed against
3.1. The order appealed against is the entirety of the first operative part, the entirety of the second operative part, and that portion of the third operative part, which ordered the repayment of €90,000 paid out on foot of the High Court order.
4. The Contentions of the Parties
4.1. The notice of application for leave to appeal, together with the response is published along with this determination. In those circumstances, it is not necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient, first, to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met, and thereafter consider the response.
5. The Applicant’s Submissions
5.1. The applicant submits that, in reaching its conclusions, the Court of Appeal has diminished or distorted the pivotal role of juries in libel actions, which role places particular weight on jury findings on defamatory meanings, and/or damage to reputation.
5.2. The applicant’s contention is that the judgment of the Court of Appeal suggests that appellate courts are at large to weigh evidence and to make their own decisions on matters of defamation, undermining a fundamental principle of jury trial, as identified in McEntee v. Quinnsworth (The Supreme Court, Unreported, 7th December, 1993). It is said that the Court of Appeal failed to apply the principles enunciated in Hay v. O’Grady  I.R. 210, and/or fundamentally misapplied the principles enunciated therein, insofar as they apply to findings of a jury (as opposed to a judge alone). The applicant submits that the decision subverts the near “sacrosanct” nature of jury findings on defamatory meanings, or damage to reputation; that the Court of Appeal disregarded established principles, as enunciated in the case law, as to the status to be imparted to jury verdicts, and in holding that the jury’s determination that the applicant had been libelled on the ‘drugs issue’ was perverse. The applicant relies on Quigley v. Creation  I.R. 269; Barrett v. Independent Newspapers  I.R. 12; Cooper Flynn v. R.T.E.  2 I.R. 72 in this regard.
6. The Respondent’s Submissions
6.1. The respondent, on the other hand, says that the Court of Appeal did nothing more than apply the case law, as identified above in Quigley, Barrett and Cooper Flynn. It says, the Court of Appeal also correctly applied the law, as enunciated by the House of Lords in Grobbelaar v. News Group Newspapers  1 WLR 3024. In Grobbelaar, the House of Lords, in allowing an appeal held, (Lord Steyn dissenting), that an appeal court ought not to find the verdict of a jury on liability to be perverse, unless there was no rational explanation for it; that although any finding by a jury that the particular plaintiff in Grobbelaar had not entered into a corrupt conspiracy would, on the evidence before it, have been plainly wrong; the jury had been entitled to find that the ‘sting’ of the article published by the defendant lay not in an allegation of conspiracy, but in that of match fixing on the field of play; that the verdict in favour of the plaintiff was consistent with the jury having come to that conclusion; and that, accordingly, since it had been open to the jury to find that the ‘sting’ of the libel lay in the allegation of match fixing, and to find that had not been justified, the Court of Appeal ought not to have overturned the jury’s verdict, on liability. The House of Lords held that, although the restoration of the jury’s verdict entitled the plaintiff to judgment, there was no justification for a court to award substantial damages to a person shown to have no reputation deserving of legal protection, and the plaintiff’s conduct, as demonstrated in the evidence before the jury, had destroyed the value of his reputation; and that, accordingly, the jury had erred in making an award of damages of £85,000 Sterling, and since there was power in the appellate committee’s inherent jurisdiction to substitute the order, which it concluded the Court of Appeal should have made, an award of £1 nominal damages would be substituted.
6.2. The respondent submits the Court of Appeal did no more than correctly apply the principles enunciated in Hay v. O’Grady, cited earlier, and MC v. FC  IESC, and Grobbelaar case. The respondent’s case, put at its simplest, is that, in reality, the applicant simply disagrees with the determination of the Court of Appeal, and that the Court of Appeal correctly applied the principle enunciated in Browne v. Dunn, described below.
7.1. As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4, or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it is otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise, a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.
7.2. Against this background it is necessary to address the basis upon which it is said that the constitutional threshold is met in this case.
8. The Court of Appeal’s Reasoning
8.1. Speaking on behalf of the Court of Appeal, Hogan J. reasoned that::
“… If it is clear that the article complained of is true in substance and fact, then the media's constitutional right to publish this material cannot be compromised by a jury verdict to the effect that it is defamatory of the plaintiff, the traditional near sanctity of such verdicts at common law notwithstanding. Any other conclusion would mean that the appropriate balance envisaged by the Supreme Court in de Rossa (v. Independent Newspapers  4 I.R. 432), and Leech (v. Independent Newspapers  IESC 79), would not have been struck, since the substance of the media's constitutional right to publish material which is in fact true would indeed have been compromised.”
8.2. Having considered the judgment of Walsh J. in Quigley v. Creation  I.R. 269, the judgment held that the role of a jury arose in determining whether the false words in question were, in fact, defamatory of the plaintiff, and whether the plaintiff’s reputation was actually materially damaged by the publication. The court held that it was in that specific context that particular weight, “almost sanctity”, must be given to a jury verdict. The court referred, in this context, to Barrett v. Independent Newspapers  I.R. 13, wherein Henchy J. also addressed the role of juries in libel actions. However, the court pointed out, that relying on Berry v. Irish Times  I.R. 368, that this Court reversed a jury verdict in favour of a plaintiff, wherein the jury had concluded it was defamatory to say of the former secretary of the Department of Justice that he was a “20th Century Felon Setter”. The court concluded it could not be defamatory to say of a very senior public servant that he co-operated with the authorities in suppressing the activities of illegal organisations.
8.3. In the instant case, the issues before the jury were whether, in the face of defence evidence regarding statements made by the applicant to members of An Garda Siochana, admitting certain conduct (including having been on a journey to London with others where drugs were bought), and that he had very substantial sums on deposit, the jury could, nonetheless, have reasonably concluded that the plaintiff was not a drug dealer, or, in the light of substantial sums of money which the applicant held on deposit, that he was not a loan shark. The court concluded that a jury does not have the right to bring in a verdict to the effect that a particular statement is false, when the opposite is, in fact, the case. Any other conclusion would mean that the newspaper would be deprived of its constitutional right to publish material concerning the plaintiff which is, in fact, true (para. 66).
8.4. With regard to the allegation of drug dealing, the court concluded that very little of the evidence of this had been challenged at trial by the plaintiff. The court referred to large sums said to be in the applicant’s bank account at a time when he was receiving unemployment assistance, and where the circumstances in which he might have legitimately earned this money were “far from clear”. The Court of Appeal observed (para. 84), that the principles enunciated in Hay v. O’Grady, MC v. FC, and also Pernod Ricard v. Fyffes (Unreported, Supreme Court, 11th November 1988), applied a fortiori in the case of a jury verdict. In finding that the applicant was not a drug dealer, the court concluded the jury must have decided to reject the garda evidence, and prefer the evidence of the applicant to the effect that he never made money from drug dealing. During the course of the trial, a number of gardai testified as to statements, said to have been made by the applicant, admitting going on a journey to London with others who bought drugs. The content of these statements were not challenged in cross-examination, but in circumstances where the applicant himself had earlier denied in his evidence that he had engaged in drug dealing. The Court of Appeal concluded that the jury verdict with regard to drug dealing could not be allowed to stand; that the evidence, overwhelmingly, pointed to the conclusion that the applicant was indeed a drug dealer, and associated with a significant drug seizure subsequently made in Tubbercurry, County Sligo. If this was correct, the court held, the newspaper had a constitutional right to publish this information, by virtue of Article 40.6(i) of the Constitution, and the right could not be compromised by a jury verdict, which was, in essence, perverse.
8.5. Second, the court, applying Browne v. Dunn, concluded that the evidence adduced in relation to the loan sharking allegation was much more limited. It might have been open to a properly instructed jury to find for the applicant on that allegation. It would, however, have been necessary for the jury to have been told, in express terms, that the failure effectively to cross-examine named members of An Garda Siochana regarding the loan sharking admission, meant that such evidence carried considerable weight. (Browne v. Dunn  6 R 67, as considered in Director of Public Prosecutions v. Burke  IEHC 483, Baker J.; AC v. Judge O’Brien  IEHC 25, O’Malley J.; and this Court in M v. M  ILRM 160). The court concluded that the jury might elect to believe the applicant’s denial that he made a statement, admitting loan sharking, a member of An Garda Siochana, but it would also have been necessary for the jury to have been warned, in appropriate terms, that the applicant’s credibility had objectively been compromised. As the jury had not been so instructed, the court concluded that the verdict should not be allowed to stand. As the drug dealing allegation had been found to be true, the court dismissed that part of the applicant’s claim. The court directed a new trial on the loan sharking allegations only. As a consequence, the court did not express any view on the remaining issue, namely, the quantum of damages.
9.1. This Court would wish to reiterate, very clearly, that a grant of leave is not, in any sense, to be interpreted as even a prima facie finding that the Court of Appeal had fallen into error. Moreover, the Court would reiterate that an allegation that the Court of Appeal did not apply the rule in Hay v. O’Grady is not to be seen as a “back door” method of invoking the jurisdiction of this Court. The constitutional threshold tests which arise have been identified earlier, and must be applied with great care.
9.2. Nonetheless, in the view of the Court, the following issues arise as being issues of general public importance, or that it is in the interest of justice that they should be determined by this Court. These are (a) whether it is open to the Court of Appeal to reverse a jury verdict that a statement was defamatory of the plaintiff arrived at even in the face of strong evidence to the effect that the defending allegation was true; (b) whether the media have a constitutional right to publish material, and that this right cannot be compromised by a jury verdict to the effect that such material was defamatory of the plaintiff; (c) whether it was necessary for the jury to be warned by the trial judge that, objectively speaking, the plaintiff’s credibility had been compromised; (d) whether the Court of Appeal is entitled to reverse the verdict of the jury on the grounds that it was perverse, if some other alternative explanation was open to the jury; (e) the present legal status in the State of the rule in Browne v. Dunn, in circumstances where little of the evidence adduced by the newspaper, either in regard to the allegation of drug dealing, or loan sharking, had, in fact, been directly challenged in cross-examination.
9.2. In the view of the Court, these are issues which each reach the constitutional threshold. (a) to (c) deal with constitutional rights of free expression, and the role of juries in defamation proceedings. (d) deals with the power of an appeal court to reverse jury verdicts. (e) deals with an important evidential rule. Each of the matters are of general public importance, and are also matters where the interests of justice very clearly arise in this, and other cases. The Court, therefore, grants leave to appeal under Article 34.5.3 of the Constitution, on each of the grounds (a) to (e) set out above, and the Court so orders.
And It is hereby so ordered accordingly.