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1. The background history to this litigation is set forth in my judgment delivered on 27th February, 1997 (Hamilton C.J., Barrington J. concurring). In summary, the Court held that the learned trial judge (Barron J.) at the first trial that went the distance, in the sense of being subject to an award by a jury, had been correct in holding that the plaintiffs had been defamed but that the sum of £515,000 damages awarded by the jury was excessive and that there should be a retrial confined to an assessment of damages exclusively.

2. As in the first action and appeal, when the brothers Albert and Dudley Dawson conducted the proceedings as lay litigants and Albert Dawson was the chief protagonist, so in relation to the retrial; and on this present appeal. Once again, when I refer to the plaintiff, I intend to refer to Albert Dawson, though, of

3. The retrial commenced before Budd J. and a jury on 3rd February, 1998. and continued until 10th February when it came to an end. This was because of a decision by the plaintiffs not to proceed further with the action in the light of certain preliminary rulings made by the trial judge in advance of the full opening of the case.

4. The rulings to which the plaintiffs objected were given on 6th February. The plaintiff made a start at opening the case on that date but was taken sick and so the case was adjourned until 10th February. By that time, the plaintiffs had a chance to consider the trial judge’s rulings and their stance was that the trial judge had taken away their right to a proper retrial of their case.

5. The order of the High Court as drawn up sets forth:-

6. The plaintiffs appeal to this Court against the dismissal of their action.

7. Between the date of the judgment and order of the Supreme Court (27th February, 1997) and the actual retrial, a number of interlocutory events should be noted.

8. On the 23rd June, 1997, Moriarty J. made orders in relation to two motions brought by or on behalf of the defendant and one order in response to an application brought by the plaintiffs.

9. In the orders made, Moriarty J.

10. On the 15th October, 1997, Kelly J., on the defendant’s motion, struck out most of the reply delivered by the plaintiffs in answer to the defendant’s amended defence in which he also directed the plaintiffs to make discovery of certain categories of documents.

11. On 25th November, 1997, a further order was made by Kelly J., upon the defendant’s motion, directing that the plaintiffs make available for inspection by the defendant eleven categories of documents relating to the plaintiffs’ business for periods both before and after the publication of the defamatory material.

12. In the course of these interlocutory matters, the plaintiffs filed a number of affidavits and the complaint made on behalf of the defendant about them is that they contain material which would clearly not have been admissible at the trial.

13. To give a flavour of what the plaintiffs were alleging, I take this extract from an affidavit sworn by Mr. Albert Dawson on 21st April, 1997:-

14. Prior to the commencement of the retrial, the defendant’s solicitors wrote to the plaintiffs by letter dated the 30th January, 1998, in which they said that many of the matters referred to by the plaintiffs in their reply and in their

15. It should be said that this was a somewhat unusual course, but the defendant’s counsel say they were influenced by the fact that, at their request, the original jury in a case presided over by Kinlen J. had been discharged. Seemingly, on that occasion the plaintiff, in opening the case to the jury, introduced this matter of alleged tax evasion by the defendant.

16. Once again, it is necessary to reiterate, as this Court is doing with increasing frequency, that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant, or should not have been given before them, as well as in the face of adverse pre-trial publicity. See D. .v. Director of Public Prosecutions [1994] 2 IR 465; Z .v. Director of Public Prosecutions [1994] 2 1R 476 and Irish Times Limited .v. Murphy [1998] 2 ILRM 161.

17. Unfortunately, in my judgment, the trial judge in doing his best to keep the trial on the rails fell into error in treating what I said (speaking for the Court) at the previous appeal as being intended to govern what should take place at the retrial. That was not, nor could it have been, intended. All this Court can ever do is to deal with the case that is brought on appeal before it. A retrial may take a completely different complexion. Issues that were not raised at the original trial may be raised at a retrial. To take a simple example from the field of personal injuries litigation, a plaintiff might have complained of having had an injury to his leg which might not at first encounter have been viewed as too serious. So he might have got what was held (on appeal) to be an excessive award from the court of trial. A retrial is ordered. It is now discovered that the injury is much more serious than at first appeared. The leg has to be amputated. So, the award in the second case may be many times greater than the award that was held to be excessive on appeal after the original trial. For an example of such a happening reference may be made to Danaher v. Roscommon County Council (Supreme Court, 21st December, 1973; unreported) .

18. The judge took from the Supreme Court judgment that damages were to be compensatory only and that the Court had taken the view that aggravated or exemplary damages were not open in this case. However, as already indicated

19. There is often confusion about the proper description of damages and I attempted to unravel it to a degree in my judgment in McIntyre .v. Lewis [1991] 1 IR 121. To recapitulate: while aggravated damages are distinct, they are still meant to compensate the plaintiff and so they should be regarded as a sub-head of compensatory damages awarded to the plaintiff On the other hand, exemplary (or punitive) damages are a separate category. They are not compensatory at all. Though the question of exemplary damages was not in issue at the first trial, seemingly, the plaintiffs were anxious to put them in issue at the second trial. In this jurisdiction it is not necessary to plead in regard to exemplary damages in the statement of claim (and it was not done in this case) though it is a requirement in England under that country’s rules of court.

20. So, the plaintiffs were entitled at least to advance a case that they were entitled to exemplary damages though, in due course, it would be for the trial judge to decide whether they brought themselves within any category that would entitle them to exemplary damages. Before us the plaintiff relied on a passage from Gatley on Libel and Slander (8th ed.), at paragraph 1454, that in the case of “oppressive, arbitrary or unconstitutional action by servants of the government, the latter phrase, it seems, being taken to include all persons purporting to exercise powers of government, central or local, conferred upon them by statute (EMPHASIS ADDED) or at common law by virtue of the official status or employment which they hold”, exemplary damages might be awarded. The plaintiffs argued before us that since the defendant body derived its powers from statute then it could be liable for exemplary damages. I emphasise that I make no judgment as to whether this submission is right or wrong but it clearly is one that they were entitled to advance.

21. The next area that gives rise to difficulty is the ruling out by the trial judge of any entitlement of the plaintiffs to make mention of these matters of alleged fraud, tax evasion and creative accounting etc. by the defendants. Clearly, in these defamation proceedings the plaintiffs cannot prove, or attempt to prove, any separate case in criminal or civil law against the defendant, its servants or agents. In particular, the defendant’s officers and servants are

22. It should be noted that the concept of malice may have different connotations in different aspects of the law of defamation. Often, in a statement of claim, the words complained about are said to have been uttered “falsely and maliciously” of the plaintiff. In another context, the word “malicious" is used to denote the state of mind of the defendants, which if proved to have actuated the publication, will defeat a defence of fair comment or qualified privilege, or in certain circumstances, a defence of justification.

23. With this latter concept of “malice” we are not here concerned.

24. Mr. Cooney, S.C., complains that the plaintiffs are adept at finding a passage in Gatley and bringing their case within it. However, I think that they cannot be condemned for that.

25. While the judge ruled that there should be no mention in opening or closing the case, or in the giving of testimony, or the production of any document, of a suggestion or attempt to prove loss, other than to difficulties which had been caused by the defamatory material to the plaintiffs in the running of their business, and while the plaintiffs were entitled to deal with any loss of agencies with insurance companies which they suffered as a result of the defamatory letter, he left open an invitation from the defendant to furnish further particulars in relation to loss because of the removal of an agency.

26. It may not have been clear, however, that the plaintiffs were entitled at least to advance submissions on their entitlement to claim general damages along the lines as outlined in the above quoted passage from Gatley on Libel and Slander.

27. Once again, I do not give a concluded opinion on this matter because it would be wrong for this Court to give any concluded rulings in advance of the hearing of the evidence in the case.

28. In general, our duty is to act as a court of final appeal when all the evidence given at trial has been laid before us.

29. Of course, that has not happened in relation to the trial which is the subject of this appeal.

30. It should be noted, too, that the trial judge gave a number of other rulings, which are not subject to any objection by the plaintiffs, such as that the amount lodged in court should not be disclosed to the jury.

31. The rulings that the plaintiffs complain about are as I have outlined above, and they submit that these rulings prevented them from being able to make a meaningful submission to the jury so as to get the damages which they say the jury might have awarded them if they were allowed make their case in the way in which they contend they are entitled.

32. I have reached the conclusion that the approach by the trial judge, though well intended, was not conducive to the proper disposal of the case.

33. At the risk of repetition, I fear that the spectre of inadmissible evidence getting in, requiring the jury to be discharged, clouded the conduct of these proceedings. Such a spectre should, for the future, be put to one side. Even if inadmissible evidence gets in, the jury should be taken as likely to abide by the trial judge’s ruling in all matters of law and by their oath to do essential justice between the parties.

34. Before us, counsel for the defendant has made a submission which they say is their basic position. They say that the trial judge gave certain rulings and whether the rulings were right or wrong it was nonetheless essential for all parties to obey them. They raised the question: if the defendants had been represented by legal counsel and the legal representatives had adopted the course of action that the plaintiffs adopted, viz, to walk out of the case when the rulings were given, would this Court entertain such an appeal?

35. I think the consideration that we give lay litigants is, perhaps, somewhat overstated on occasion. Of course, we extend as much understanding as we can to lay litigants in regard to technical aspects of any given litigation but if there is a breach of the law, or of some essential procedural matter, the consequences should be the same whether the person is represented or not.

36. However, the point about the rulings given in this case is they were somewhat unorthodox. They anticipated events which could only be judged in the light of the evidence proffered, the submissions to be made and the general run of the case. They were made in the abstract and in the light of the previous trial and, therefore, it was a rather unsatisfactory way to approach this by no means uncomplicated litigation.

37. The plaintiffs say that they could not present any meaningful case. If they had let the case take its course after the rulings were given, it might have taken many days or weeks and the result might have been the same: an appeal to this Court because of the inappropriate rulings of the trial judge.

38. In the circumstances, I would order a retrial. I would hear the parties as to whether matters should be brought to the status quo ante that prevailed before Budd J’s order, or how else matters should be dealt with in the light of this judgment.

39. I would express the hope that matters be brought to a conclusion at this further retrial. The chief bugbear of this litigation appears to be the allegations that the plaintiffs make, and continue to make, against the defendant. I have delineated, as best I can, that they must not make these allegations in these present proceedings in the sense of attempting to prove them. If they want to bring separate proceedings, that is for another day. They

40. However, I would be expressing undue optimism to think that the case will necessarily stay on the rails at the further retrial; I would, however, advocate that any application to discharge the jury should be made only after the most serious contemplation and should only be acceded to in similar vein.