Defamation
19/12/2023
Wishing Esther Rantzen every good luck and health in her cancer struggle.
Her well known defamation case against the Mirror in 1993 contributed to the evolution of the common law (in the area of using comparators to determine quantum of damages). Her award of damages was reduced from £250,000 to £110,000 by the Court of Appeal.
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Supreme Court case in Tracey v Judge Anderson (Unapproved) [2020] IESC 76 (21 December 2020)
“23. Fifthly, there is the reining in of Mr Tracey’s cross-examination by the judge in the District Court. This was within the judge’s duty of controlling the court procedure. A court proceeding carries absolute privilege: no one can sue any other person for defamation based on a statement in court which is relevant to any fact in issue or which is a question reasonably impacting potentially on the creditworthiness of a witness. That privilege exists to enable litigants to speak freely and without fear as to legal consequence from conducting their case. As a principle, however, the existence in court of absolute privilege does not give litigants a free hand. Litigants have to focus. Cross examinations have to be to the point. No litigant has an entitlement to making irrelevant and damaging declarations, stating, for instance, on a civil suit about dry cleaning a coat that a particular politician is accepting bribes, or that a particular minister of religion is a serial abuser of children. If these are relevant to the case, it may be another matter and may be a relevant issue to which the court must listen and then consider. Entirely extraneous and irrelevant comments to the proceedings do not carry absolute privilege. Courts are very conscious of keeping proceedings focused; of not allowing more public time and expense to be devoted to a case than its complexity and importance merits. All judges are conscious of not allowing litigants to use the mere fact of having the attention of the court, and perhaps the media, to enable them perhaps to settle scores, proclaim political rhetoric, or engage in character destruction. It is not claimed that Mr Tracey did this but he certainly did go off the point. The principle of control, focussing on what is relevant and excluding irrelevant material is part of the authority of every judge. Hence, a cross-examination or a submission may be reined in and directed to what is germane. That is central to the judicial function. The Garda officer being questioned had been called as to the service of a summons. When Mr Tracey ranged into other topics, as to the conspiracy which he more generally considered was being waged against him and his family, the judge called on him to be relevant. This is pleaded as a denial of rights. It is not.”
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Tracey v Independent Newspapers (Ireland) Ltd & Ors (Unapproved) [2023] IECA 1 (12 January 2023)
JUDGMENT of Ms. Justice Donnelly delivered on the 12th day of January 2023
Introduction
1. On the 17th September 2004, each of four newspapers (The Irish Times, Irish Independent, Evening Herald and Irish Daily Star, hereinafter “the newspapers”) published an article about a prosecution for assault taken against the plaintiff (hereinafter “the appellant”) in the District Court the previous day. The articles, while similar, are not identical and each has a different headline. All of the articles say, albeit in somewhat different terms, that the appellant was convicted of assault and that he was given the Probation Act because the assault was a minor one. The appellant issued proceedings against each of the newspapers individually on 23 December 2008 (together referred to as “the proceedings”), claiming that he had been defamed. His claim is that he was not convicted because the assault proceedings were dismissed against him. He claims the articles (and the photograph of him in one publication) were published maliciously.
2. In the High Court, Meenan J., pursuant to motions brought by each of the newspapers, directed a trial in each action of a preliminary issue “namely as to whether the publication upon which the Plaintiff sues is protected by privilege”. It is against those orders that the appellant appeals.
3. The procedural history of the proceedings is relevant to the arguments raised in the present appeals. The newspapers had previously brought motions in the High Court, dated 30 June 2010, invoking the inherent jurisdiction or alternatively Order 19 rule 28 of the Rules of the Superior Courts to strike out/dismiss/stay the proceedings on grounds that they were unsustainable, bound to fail, or frivolous and/or vexatious. The newspapers were successful in the High Court where the appellant did not appear but relied upon two medical reports to explain his absence. On appeal by the appellant against each of the High Court orders, the Supreme Court, in a series of judgments delivered by MacMenamin J. ([2019] IESC 62, [2019] IESC 67, [2019] IESC 68, & [2019] IESC 69), allowed the appeals and ordered that the matters be remitted to the High Court for a rehearing in accordance with law.
Conclusion
72. There was no procedural irregularity in the newspapers’ reformulation of their original motions into the fresh motions in which they sought preliminary hearings of whether the publication upon which the appellant sues is protected by privilege under s. 18 of the Defamation Act 1961 and/or at common law.
73. The Irish Times were entitled to seek an order for the determination of a preliminary issue pursuant to O. 25 r. 1 in circumstances where they had filed a defence. Such an entitlement does not apply to the defendants in the other three proceedings. While it is arguable that there is a jurisdiction under O. 34 r. 2 or under the inherent jurisdiction in the High Court to order a trial of a preliminary issue where one party objects and/or pleadings have not closed, it is not necessary to reach a final conclusion on the availability of such a jurisdiction. This is because such a jurisdiction could only arise on an exceptional basis in defamation proceedings where the facts at issue are agreed and a clear free standing issue of law suitable for preliminary hearing arises. That is not the position in any of these cases.
74. The evidence reveals that there is a factual dispute relating to whether the contents of each of the publications are a factually accurate reflection of what was said by the District Court judge in the courtroom. There are also issues about the addition of extraneous matters in these articles. The decision as to whether a publication is a fair and accurate report of court proceedings is a matter for a jury provided that there is at least some evidence to show that the publication is unfair and inaccurate. In all the circumstances, the issue as to whether the articles are fair and accurate is properly left in the first instance to the trial judge.
75. The legal issue as to whether the privilege in s. 18 of the 1961 Act is qualified or absolute is a matter of law which must be decided by a judge alone. This does not interfere with the right to trial by jury as the jury does not make decisions as to the law but makes decisions as to the facts. In the particular circumstances of these cases, the evidence before the court does not demonstrate how there would be a saving of time or costs by having this matter heard as a preliminary issue.
Costs
76. As the appellant has been entirely successful in his appeals, it appears he is presumptively entitled, as a litigant in person, to his reasonable outlay and out of pocket expenses. If the newspapers wish to contend for a different order they may file written submissions no longer than 1,000 words as to why that is so within a period of 14 days after this judgment is issued. The appellant will then have a further 14 days to make his submissions. If no submissions are filed, the order will be drawn up in the terms set out.
As this judgment is being delivered electronically my colleagues Haughton and Allen JJ have authorised me to record their agreement with the judgment and the orders proposed.