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Browne v. Tribune Newspapers plc t/a The Sunday Tribune [2000] IESC 74; [2001] 1 IR 521 (24th November, 2000)
THE
SUPREME COURT
KEANE
C.J.
DENHAM
J.
GEOGHEGAN
J.
52/2000
BETWEEN:
PATRICK
JOSEPH BROWNE
Plaintiff/Appellant
and
TRIBUNE
NEWSPAPERS PLC. t/a THE SUNDAY TRIBUNE
Defendant/Respondent
JUDGMENT
delivered the 24th day of November 2000 by Keane C.J. [Nem Diss.]
The
background
1. The
plaintiff in this case is and was at all material times a Detective
Superintendent in the Garda Síochána. On the 31st May 1998, the
defendants published an article in the
Sunday
Tribune
which purported to give an account of some of the circumstances surrounding a
shooting incident which occurred when the County Registrar for Cavan, Mr.
Thomas P. Owens, and two of his
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(2)
assistants
were attempting to enforce a court order for the recovery of possession of a
house in Cavan and Mr. Owens was seriously injured.
2. The
article was headed:
“Gardaí
warned about German man’s ‘arsenal’”
and
went on to say that:
“Gardaí
were warned that the German national who shot a sheriff and two bailiffs as
they attempted to evict himself and his dying mother from a house in Cavan last
year had an arsenal of weapons at his disposal.”
3. The
article went on to refer to a so1icitor’s letter, which it said had been
seen by the newspaper in which he informed gardaí that the occupant of
the house, Gerrit Isenborger, had “an array of firearms”
in
his possession and asked that his house be searched. The letter said that this
had been sent by solicitors acting on behalf of the owner of the house and that
after the incident the gardaí recovered five rifles, a handgun and a
bayonet from the house. It also said that the owner of the house had alleged
that Mr. Isenborger had blackmailed him and threatened him over the phone. The
article said that Garda Headquarters had issued a short statement saying that
they would not comment on the matter at this time but that a spokesman for the
solicitors had
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(3)
confirmed
that the letter had been sent and said that the gardaí had neglected and
omitted to investigate the complaints in the letter and that if they had,
“the
tragic death of Mr. Isenborger’s mother and the permanent debilitating
injury to Mr. Owens would not have occurred.”
4. The
article added that the spokesman for the solicitors had said that the letter
had been acknowledged by the gardaí but they had refused to explain why
they had never acted on it.
The
proceedings in the High Court
5. The
plaintiff who was, at the time of the shooting incident, the Superintendent in
charge of the district in Cavan in which it occurred, issued proceedings
against the defendants claiming damages for libel. It was alleged in the
statement of claim that the article meant and was understood to mean
inter
alia
(a)
that the plaintiff had neglected and omitted to investigate a serious complaint,
(b)
that that neglect and his incompetence had caused the tragic death of Mr.
Isenborger’s mother and the permanent debilitating injury to Mr. Owens;
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(4)
(c)
that a properly made out complaint by a firm of solicitors was left without a
response for a two month period; and
(d)
that the plaintiff was unfit to hold his position in the gardaí.
6. The
plaintiff claimed that these words were greatly damaging to his reputation and
that he had been brought into public scandal, odium and contempt.
7. In
their defence, the defendants denied that the plaintiff was identified by the
article in question and also pleaded justification and fair comment.
8. The
action was tried in the High Court by Kearns J and a jury. The following
questions were left to the jury
“1.
Was the article true in substance and in fact?
2.
If not, assess damages.”
9. The
jury answered the first question in the affirmative and, accordingly, judgment
with costs was entered for the defendants.
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(5)
10. The
defendants have now appealed to this court seeking an order that the judgment
dismissing the plaintiff’s claim be set aside and directing a retrial on
all issues. The grounds of appeal can be summarised as follows:
(a)
that the learned trial judge wrongly allowed counsel for the defendant to
cross-examine the plaintiff as to monies recovered by him in respect of other
alleged libels which were not in respect of the same words as those complained
of in the present proceedings;
(b)
that the trial judge wrongly failed to direct the jury that the plaintiff could
not as a matter of law have issued a search warrant or search order on foot of
the solicitor’s letter;
(c)
that the trial judge failed adequately to put to the jury the plaintiffs case
in the course of his charge to them;
(d)
that the trial judge failed adequately to direct the jury following the asking
by the foreman thereof of questions prior to the jury’s retirement; and
(e)
that the learned trial judge intervened in the cross-examination by counsel for
the plaintiff of one of the witnesses at a critical juncture in such a way as
to deprive the cross-examination of its proper effect thereby causing the trial
to become unsatisfactory.
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(6)
The
first ground of
appeal
11. The
circumstances giving rise to the first ground of appeal are as follows. At the
outset of his cross-examination of the plaintiff, counsel for the defendants
referred to an answer the plaintiff had given in the course of his direct
evidence, to the effect that he wanted “an apology among other
things”. After the plaintiff had been pressed as to what the “other
things”
were,
the questioning continued as follows: -
“139...
you also wanted such damages as your solicitor would be able to get on your
behalf is that correct?
A.
Correct, for the loss of my good name.
140
Q. This was as of the time when the Tribune wrote back to you in June of 1998,
the thing not being a month old, that was your attitude, is that correct?
A.
But they did not offer me an apology.
141
Q. But that was your attitude. You wanted an apology and you also wanted
damages even at that stage?
A.
I would have sought damages if it was the legal advice of my solicitor, but
that would have been in my mind.
142
Q. That would have been in your mind?
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(7)
A.
Yes.
143
Q. Very good. Had you ever in fact sued before, Mr. Browne?
A.
I had.
144Q.
For what had you sued for before?”
12. At
that stage, counsel for the plaintiff intervened and indicated that he wished
to raise a matter in the absence of the jury. The jury having retired, counsel
submitted that, while he accepted that in any libel action it was permissible
to call evidence that the plaintiff has recovered damages in respect of the
same or a similar libel, it was not permissible to ask the witness whether he
had sued in respect of any other matters. 1-le said that it was a plain
invitation to the jury to treat the plaintiff as a “trigger happy
enthusiast for taking libel actions” and, accordingly, could be seriously
prejudicial to the plaintiff, while at the same time not being relevant to any
issue which they had to decide.
13. Counsel
for the defendant submitted that, in the light of the opening of the case by
counsel for the plaintiff in which the latter was depicted as being reluctant
to sue, he was entitled to draw the attention of the jury to the fact, if it
were the fact, that the plaintiff had not exhibited a similar reluctance on
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(8)
previous
occasions. He further submitted that, in any event, he was not at that stage
adducing any evidence to the jury but was simply cross-examining and that he
was entitled to cross-examine the plaintiff on a wide ranging basis, provided
the trial judge was satisfied that his cross-examination was not unfair or
unjust.
14. Having
heard the submissions of counsel, the trial judge ruled as follows:
“In
my view this line of questioning is entirely admissible and relevant as to
credit and I so rule.”
15. The
cross-examination then resumed as follows:
“145
Q. Mr. Browne, I was asking you about whether you have had ever sued for libel
before, is that right?
A.
That’s correct.
146
Q. And you said that you had?
A.
Yes.
147
Q. How many times can you remember?
A.
It was either three or four...”
16. Counsel
then elicited from the plaintiff that he had received damages of £25,000
for the first libel, £18,000 for the second and £20,000 for the third
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(9)
making
£63,000 altogether. He then, after being further pressed, said that there
was a fourth action for which he received either £15,000 or £20,000.
He was further cross-examined as follows:
“177
Q.... So when [counsel for the plaintiff]
painted
a picture of somebody reluctant to sue, that would not really be you, Mr. Browne?
A.
That’s the last thing I wanted to do is to sue, but I have to keep my
reputation and my good name and I am entitled to do that. I would not be here
if the paper had not written it.
178
Q. You see you actually got the proceedings out barely three weeks after the
article, actually two days and three weeks?
A.
I briefed my solicitor and he took it from there.
179
Q. Am I right to say there was no question of you being a reluctant litigant
going to sue the newspaper, that we can forget that stuff can we?
A.
The last thing I wanted is to be is (sic) here in the High Court and that is my
reluctance, but when an article is written about me that is untrue, unjust and
unfair because it didn’t even enquire into my side of
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(10)
the
story and it didn’t even credit me with having a side of the
story.” [Transcript, Day 1 pp. 64 - 83]
17. In
his closing address to the jury, counsel for the defendants said:-
“Mr.
Browne has been down this road before. He has a path beaten to his solicitors
for libel. He succeeded many a time before, so often in fact has he sued for
libel and got money he says himself by settlement. Who cares? He has got his
money. He can’t at first remember how many times it was. He can’t
even remember exactly how much money it was. Ultimately, it comes down to four
goes (sic) and £83,000. I think if my maths is correct in the four goes,
so this is no shrinking violet. This is not somebody who is sitting there
‘oh my God what will happen’?, and that is relevant to my
respectful submission, if it ever comes to the question, which I think it
won’t, and I suggest to you it won’t because I am suggesting that
this article is in substance, the gist of it, the essence of the allegation is
true.”
18. At
a later stage in his address, counsel returned to this theme:
“...It
is fair to say that sometimes people are in here complaining about libel
actions and they can be criticised for delaying too
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(11)
long.
But there is delaying too long and there is Speedy Gonzales and there is 23
days and out he goes, on our merry way again, the good ship Superintendent
Browne libel train sets sail once more into the south seas in the hope of
finding a comfortable landing place. Off he goes again. That ship has had a
very pleasant passage on previous occasions, it has sailed forth and it has
found friendly natives to throw yams on to it so he knows what to do. Off they
go again, here we go again. He is going on, number five, that is what we have
here.”
Submissions
on behalf of the parties
19. On
behalf of the plaintiff, Mr. Paul O’Higgins, S.C. submitted that the
questions which counsel for the defendants was permitted to ask in relation to
other proceedings for defamation brought by the plaintiff were not relevant to
any issue in the case, were seriously prejudicial and should not have been
admitted. He said that the evidence was not relevant to the pleas of
justification and fair comment or to the meaning to be attached by the jury to
the article.
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(12)
20. As
to the possible relevance of the questions to the issue of mitigation of
damages, Mr. O’Higgins submitted that the nature of the evidence which
the defendant was entitled to call in mitigation of damages was set out at
para. 33.25 and the following paragraphs in Gatley on
Libel
and Slander
(9th edtn.) and was confined to the following six matters:
(a)
The plaintiff’s bad reputation;
(b)
Evidence properly before the court on other issues;
(c)
Facts which tend to disprove malice;
(d)
The plaintiff’s own conduct;
(e)
Apology or other amends; and
(f)
Damages already recovered for the same libel.
21. He
submitted that the evidence sought to be elicited by cross-examination did not
relate to any of these matters. Moreover, the exception permitted by s. 26 of
the Defamation Act, 1961, under which the defendant may give evidence in
mitigation of damages that the plaintiff has recovered damages or has brought
actions for damages for libel or slander in respect of the publication of words
to the same effect, would be superfluous, if, as contended for on behalf of the
defendant, the defendant was in any event entitled to adduce evidence of
previous proceedings for defamation, whether arising out of the same or another
alleged libel.
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(13)
22. Mr.
O’Higgins further submitted that the rationale for pursuing this line of
questioning proffered to the trial judge, i.e. that the defendants were not
seeking to adduce any evidence but were merely cross-examining the plaintiff,
as they were entitled to do, was specious. If the party being cross-examined
gives truthful answers to the questions which he is being asked, as he is
obliged to do, his answers will then be evidence which the jury will be
entitled to take into account and it is immaterial whether that evidence is
directly adduced by the defendants or elicited by them in cross-examination.
23. As
to the trial judge’s ruling that the questioning was admissible as going
to the credit of the plaintiff, Mr. O’Higgins submitted that this was
clearly wrong. The purpose of cross-examination as to credit was to undermine
the credibility of a particular witness so that, in a case such as the present,
the jury would be slow to accept either his assertions or his denials. Since,
however, the plaintiff had never claimed that this was the first proceeding he
had taken for defamation, eliciting from him the fact that he had instituted
such proceedings could not conceivably go to his credit, unless it was
suggested that the mere fact of the institution of proceedings was of itself
discreditable, which clearly was not the case.
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(14)
24. On
behalf of the defendants, Mr. Seán Ryan, S.C. submitted that the
questions were clearly relevant to the assessment of damages, since the jury
were entitled to have regard to the effect of publication on the plaintiff and,
in considering that aspect of the case, were entitled to know that the
plaintiff had instituted proceedings for defamation on a number of previous
occasions and that, accordingly, being involved in such litigation would not
have been as traumatic for him as the jury might otherwise have thought. In
this context, Mr. Ryan said that it was noteworthy that counsel for the
plaintiff had dwelt in his opening address on the damaging effect the
publication of the alleged libel had on the plaintiff.
25. Mr.
Ryan further submitted that there was no legal prohibition against asking
questions as to previous claims for libel and that s. 26 of the Defamation Act
1961 could not be read as, by implication, prohibiting such questioning.
26. In
the alternative, Mr. Ryan submitted that the questioning did go to the credit
of the plaintiff and that the trial judge was correct in so holding.
The
Rules of the Superior Courts
27. Order
36, Rule 36 of the Rules of the Superior Courts provides that
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(15)
“In
actions for libel or slander, in which the defendant does not by his defence
assert the truth of the statement complained of the defendant shall not be
entitled on the trial to give evidence in chief with a view to mitigation of
damages, as to the circumstances under which the libel or slander was
published, or as to the character of the plaintiff
without
the leave of the judge, unless seven days at least before the trial he
furnished particulars to the plaintiff
of
the matters as to which he intends giving evidence.”
28. Since
that rule is applicable only where justification has not been pleaded, it might
be thought that it has no relevance where, as here, justification was pleaded.
That, however, is not necessarily the case. In
Plato
Films Limited .v. Speidel
[1961] AC 1090, Lord Denning commented as follows on the corresponding English
rule:
“In
the year following
Scott
. v. Sampson
(8 QBD 49), Order 361, Rule 37, was made. It was confined to cases where
justification is not pleaded. This looks as if someone thought that the
evidence receivable in mitigation of damages was different according as
justification was pleaded or not. just as Chambre J did in 1811. But this is
not true. There is no difference in principle between the
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(16)
two
cases. I prefer, however, to think that the makers of the rule thought that,
when justification was pleaded as it was in
Scott
.v. Sampson
that case made it clear that, if
the
defendant intended to give evidence in mitigation of damages, he had to include
the material facts in his defence. See what Matthew J said and Cave J. Then in
order to cover cases where justification was not pleaded, Order 36, Rule 37,
was passed so as to require the defendant to give particulars.
Since,
however, neither Order 36, Rule 36 nor any of the cases dealing with this
matter were referred to in the course of the arguments in this court or at any
stage in the High Court, it is unnecessary to consider this aspect any further.
The
relevance of the cross-examination
The
cross-examination as to actions for defamation brought by the plaintiff in the
past in respect of other unrelated publications was clearly not relevant to the
issues of justification, fair comment, the meaning to be attributed to the
words complained of or the identification of the plaintiff. They could,
accordingly, be relevant, if at all, solely to the issue of damages.
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(17)
However,
permitting cross-examination of this nature gives rise to an immediate
difficulty. If, for example, one or more newspapers had published in the past a
truly monstrous falsehood concerning the plaintiff - that he regularly accepted
bribes, for example, in return for suppressing criminal prosecutions -the fact
that he recovered substantial damages from the newspapers concerned would be
unlikely to create a damaging impression in the mind of the jury that the
plaintiff was someone who was, so to speak, in the business of exploiting every
available opportunity to him of recovering damages from newspapers. It would
follow that, were such cross-examination permissible, the court would have to
permit the plaintiff to give details as to the precise nature of the defamation
on the previous occasion, the course the proceedings took, whether any apology
was offered, and the nature of the trial. In addition, matters such as the
circulation of the offending publication would all have to be explored. The
defendants would, presumably, be entitled to call rebutting evidence and the
court would find itself in the position of having to conduct a virtual trial
within a trial on this issue and this would also apply in respect of each
individual defamation action which the plaintiff admitted to having instituted.
It would seem remarkable that a court would be obliged to try collateral issues
of this nature simply in order to determine whether, in the event of the plea
of justification failing, the plaintiffs damages should be reduced because of
his readiness to bring defamation proceedings in the past. It is true that no
such
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(18)
wide-ranging
enquiries were pursued in this case, as counsel for the plaintiff preferred to
adopt the posture that the questioning was in any event irrelevant and
inadmissible but there cannot be any serious doubt as to the entitlement of the
plaintiff to require such an enquiry to be undertaken where a defendant seeks
to elicit such evidence in cross-examination. In the absence of any authority
on the matter, I would have thought that the objection by counsel for the
plaintiff should have been upheld by the trial judge.
Evidence
in Mitigation of
Damages
in Defamation Actions
The
authorities, in my view, clearly support the view that cross-examination on
this topic is inadmissible. The law in Ireland is stated as follows in the
Consultation Paper on the
Civil
Law of
Defamation
published in 1991 by the Law Reform Commission:
“The
defendant may lead evidence in mitigation of damages as follows:
(a)
Evidence that the plaintiff
had
a general bad reputation prior to the publication of the defamation.
(b)
Under
s. 26 of the
Defamation Act [1961] evidence that the plaintiff has
recovered damages, or has brought actions for damages, for libel or slander in
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(19)
respect
of the publication of words to the same effect as the words on which the action
is founded, or has received or agreed to receive compensation in respect of any
such publication.
(c)
Under
s. 17 of the
Defamation Act [1961], evidence that the defendant made or
offered an apology to the plaintiff
before
the commencement of the action or as soon afterward as he had an opportunity of
doing so, in case the action was commenced before there was an opportunity for
making or offering such apology.
(d)
Evidence of retractions or corrections by the defendant, or the offer of a
right of reply.
(e)
Evidence of the conduct of the plaintiff.
(f)
Evidence of the circulation of the libel.
(g)
Repetition and disclosure of source.
Two
comments should be made on this passage. First, the statement of the law is in
broadly similar terms to that in Gatley on
Libel
and Slander
referred to earlier in this judgment, although some categories are specified in
Gatley which are in the Commission’s list and
vice
versa
.
Secondly, it seems to me that there is no distinction in principle between
evidence in mitigation of
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(20)
damages
led by the defendant and evidence elicited by him in cross-examination.
It
is clear that evidence that the plaintiff has instituted proceedings in respect
of unrelated publications in the past does not come within any of the
categories set out either in Gatley on
Libel
and Slander
or in the passage cited from the Consultation Paper published by the Law Reform
Commission. The exception permitted under the heading “Evidence of the
Conduct of the Plaintiff” is clearly confined in general to activities
connected to the publication of the libel of which the plaintiff complains. It
may also encompass a libel or slander on the defendant published by the
plaintiff himself. The evidence sought to be elicited by the disputed line of
cross-examination in the present case does not, accordingly, fall within that
exception.
It
may be asked why the law should be concerned in actions for defamation to
ensure that only specified categories of evidence are admitted in mitigation of
damages. However, it is to be borne in mind that in this, as in so many other
respects, such actions are
sui
generis
.
The estimation in monetary terms of the damage to a person’s reputation
is very different from the assessment carried out by courts in personal
injuries actions. This is most
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(21)
graphically
illustrated in the decisions concerning the admissibility of evidence as to the
plaintiff’s bad reputation.
Clearly,
it would be wrong in principle for a jury to be asked to assess damages in
respect of an admittedly untrue statement that the plaintiff had stolen money
from his employer on a particular occasion without being informed that he had
stolen money from a number of other employers in the past. As it has been
pithily put in a number of cases, the plaintiff should not be allowed to
recover damages for injury to a reputation that is not his. It was held in
England in the leading case of
Scott
.v. Sampson
(1882) 8 QBD 491
that
general evidence of a bad reputation was accordingly admissible in mitigation
of damages, but that evidence of particular facts tending to show the character
and disposition of the plaintiff was not. The law was thus stated by Cave J. in
Scott
.v. Sampson
:
“As
to ... evidence of facts and circumstances tending to show the disposition of
the plaintiff both principle and authority seem equally against its admission.
At the most it tends to prove not that the plaintiff
has
not, but that he ought not to have, a good reputation and to admit evidence of
this kind is in effect as it was said in
Jones
.v. Stephen
11 Price 235, to throw on the plaintiff the difficulty of showing a uniform
propriety of conduct during his
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(22)
whole
life. It would give rise to interminable issues which would have but a very
remote bearing on the question in dispute, which is to what extent the
reputation which he actually possesses has been damaged by the defamatory
matter complained of”.
(It
may be noted in passing that it was also held in that case and in subsequent
cases that evidence of rumours and suspicions to the same effect as the
defamatory matter complained were also not admissible.)
29. However,
it was acknowledged in
Plato
Films Limited .v. Speidel
,
where the law lords declined an invitation to review the decision in
Scott
.v. Sampson
that it was sometimes difficult to draw the borderline between evidence of
general bad reputation and evidence of specific misconduct which has led to it.
Moreover, in
Goody
.v. Odhams Press
[1967] 1 QB 333, it was held that evidence of previous convictions for certain
offences was in a different category from evidence of specified acts of
misconduct which had not resulted in convictions.
30. It
should also be said that the law in Ireland on this difficult topic cannot be
regarded as settled beyond doubt. In
Kavanagh
.v. The Leader
,
(decided by the former Supreme Court on the 4th March 1955 and still
astonishingly
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(23)
unreported)
Scott
.v. Sampson
was accepted as settled law. However, in an older Irish case of
Bolton
.v. O’Brien
(1885) 16 LR (Ir.) 97, 483
specific
instances of misconduct were admitted with a view to reducing damages. It
remains to be noted that the Law Reform Commission in their Report on the
Civil
Law of
Defamation
(1991) recommended that the law should be clarified by permitting the defendant
to introduce in mitigation of damages any matter, general or particular,
relevant at the date of the trial to that aspect of the plaintiffs reputation
with which the defamation was concerned. That was also in accord with the
change in the law recommended by the Faulks Committee in England.
31. I
have considered at some length the law on this topic because, while there may
indeed be cases where a rigid application of the rule in
Scott
.v. Sampson
might lead to the exclusion of a specific act of misconduct which would be
plainly relevant in establishing that the plaintiff was claiming damages to a
reputation which he did not have, the reasons which have led the courts both
here and in England to lean against the introduction of evidence as to specific
acts of misconduct in mitigation of damages would also point to the exclusion
of evidence that the plaintiff has instituted in the past proceedings for
defamation arising out of other publications relating to wholly different
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(24)
matters.
As Lord Morris of Borth-y-Gest put it in
Plato
Films Limited .v. Speidel
: -
“If
in a quest to discover or to assess the true character and disposition of a
plaintiff defendant could assert and seek to prove certain deeds which were
discreditable to the plaintiff
the
latter could hardly be denied the right to counterbalance them by asserting and
seeking to prove deeds which redounded to his credit. The limits of roving
enquiry would be hard to control. There would be trials within a trial. The
last stage of a trial would be far removed from the first.”
32. This
must apply with even greater force where the acts of which evidence is sought
to be given, i.e. the institution of other proceedings for defamation, are not
of themselves discreditable. The defendants, as I have said, have sought to
meet that difficulty in the present case by claiming that the evidence was
being introduced, not in relation to the reputation of the plaintiff, but to
the injury and distress which the publication had caused to him personally.
33. That,
of course, is undoubtedly one of the matters which the jury is entitled to take
into account in assessing the damages in an action for defamation, But it would
be anomalous, in my view, if a defendant were to be,
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(25)
in
general, precluded from introducing evidence as to specific acts of misconduct
with a view to mitigating the damages in respect of the injury to the
plaintiffs reputation, but permitted, in a case such as the present, to
introduce evidence of specific acts, whether amounting to misconduct or not,
with a view to mitigating the damages payable in respect of the injury to the
plaintiff’s feelings.
34. That
conclusion seems to me to be strongly reinforced by the provisions of s. 26 of
the Defamation Act 1961. Under that provision (which is in identical terms to
s. 12 of the English Defamation Act 1952).
“In
any action for libel or slander the defendant may give in evidence in
mitigation of damage that the plaint if has recovered damages, or has brought
actions for damages, for libel or slander in respect of the publication of
words to the same effect as the words on which the action is founded, or has
received or agreed to receive compensation in respect of any such
publication.”
35. The
reason for this provision is obvious. It would be clearly wrong that a jury
should be required to assess damages for a libellous publication without being
aware that the plaintiff had already been compensate in respect of virtually
the same libel, although appearing in another publication. However, if
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(26)
it
were permissible for the defendants to adduce evidence of the institution by
the plaintiff of defamation proceedings in respect of wholly unrelated libels,
which would be of significantly less relevance, then
a
fortiori
he should have been entitled, even in the absence of any statutory provision,
to give evidence of damages recovered in proceedings for effectively the same
libel or slander. If he were so entitled, as is claimed on behalf of the
defendants in the present case, the provisions of s. 26 would seem to be
entirely superfluous.
36. It
is, of course, possible for either the draftsman of legislation or parliament
in its collective wisdom to legislate under a misapprehension as to the state
of the existing law. But it seems to me that the provision in question is a
clear indication that the generally accepted view of the law at the time of the
enactment of the English provision, on which s. 26 of our Act is based, was
that such evidence was not in general admissible.
37. It
remains to be emphasised that, as I have already indicated, no useful
comparison may be drawn, in this context with the conduct by a trial judge of
actions for personal injuries. In such cases, evidence of previous proceedings
instituted by the plaintiff is frequently relevant under two headings. First,
the defendants may be contending that there is some overlap between injuries he
sustained in a previous accident and for which he has already been
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compensated.
Secondly, the defendants may be in a position to satisfy the trial judge that
the action instituted by the plaintiff is one of a series of actions brought by
him on a fraudulent basis. Neither of these considerations arises in the
present case.
38. The
alternative ground - and the one which found favour with the trial judge - on
which the defendants sought to justify the cross-examination question was that
it went to credit. I am satisfied that this ground also is unsustainable. The
purpose of cross-examination as to credit is to undermine the credibility of a
particular witness, and, in a case where the plaintiff had not suggested in any
way in his direct evidence that this was the first proceeding he had brought
for defamation, eliciting from him that he had in fact instituted such
proceedings could not in any way affect his credibility. Again, it would be
remarkable if a defendant would be precluded from cross-examining as to
specific acts of misconduct, but could be allowed, under the guise of a
cross-examination as to credit, to introduce evidence of conduct which could
not be said to be, of itself, discreditable.
39. I
am satisfied that the trial judge erred in law in permitting cross-examination
on matters which were not relevant to the assessment of damages or to credit,
but which could have been seriously prejudicial to the
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plaintiff
in enabling, as it did, counsel for the defendants to portray him in extremely
colourful language to the jury as a person who was simply in the business of
recovering damages for alleged libels, however trivial and inconsequential they
might be.
Other
grounds of appeal
40. The
other grounds of appeal relied on may be disposed of more shortly.
41. It
was urged that the trial judge should have directed the jury that the plaintiff
could not as a matter of law have issued a search warrant or similar order on
foot of the letter sent to him by the solicitor. Alternatively, it was
submitted that he had failed adequately to direct the jury as to the
considerations to be taken into account by them in arriving at a conclusion as
to whether the plaintiff could have issued such a search warrant or search order.
42. The
plaintiff in evidence said that he could not act on foot of the letter in
question by issuing a search order himself under the relevant legislation or
have applied to the District Court for a search warrant because he was unable
to assess the reliability of the information he had been given. It was for that
reason, it was said, that he immediately wrote back to the solicitor to
ascertain what substance there might be in the earlier letter.
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43. All
these matters were fully debated in front of the jury. It was not in issue
that, whatever might have been the legal capacity or incapacity of the
plaintiff to issue a search order himself, there was nothing to prevent him
from applying to the District Court for a search warrant and inviting the
District Judge to issue such a warrant on the basis of the information
contained in the letter from the solicitor. It was entirely a matter for the
jury to consider whether, in those circumstances, the plaintiff had neglected
to take steps which might have averted the shooting incident which subsequently
took place. I am satisfied that the trial judge instructed the jury perfectly
adequately in relation to all these matters and that this ground of appeal must
fail.
44. The
second ground of appeal was that the trial judge had failed to put the case
made by the plaintiff to the jury. In particular, he is criticised for having
reminded the jury of the significance they could attach to the fact that the
plaintiffs information as to the possible possession by the occupant of the
house of a range of lethal weapons had been transmitted to him by a solicitor,
who might be presumed to be a responsible person, and that, in those
circumstances, the jury might conclude that the plaintiff should have given
more weight to it than he in fact did. I am satisfied that the trial judge was
perfectly entitled to draw the attention of the jury to aspects of the evidence
which seemed to him to be of importance when they came to consider their
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verdict,
provided that he stressed to them, as he undoubtedly did, that ultimately it
was for them, and for them alone, to arrive at a conclusion on the facts. I
have no doubt that the trial judge put fully and fairly to the jury the
plaintiffs case and that this ground of appeal has not been made out.
45. The
next ground was that the trial judge had failed adequately to direct the jury
following the asking by the foreman of the jury of questions prior to their
retirement. The foreman of the jury had pointed out that no witnesses had been
called for the defendants and he asked whether it was possible for counsel for
the plaintiff to call witnesses from the defendants. The trial judge in
response had pointed out that it was possible for the plaintiff s advisers to
have subpoenaed witnesses from the defendants, but that this would have
presented them with the difficulty that they would be unable to cross-examine
those witnesses. That seems to me to have been a fair and adequate response to
the question put by the foreman and I am satisfied that this ground has not
been made out.
46. Finally,
it was submitted that the trial judge had intervened in the cross-examination
by counsel for the plaintiff of the solicitor at what was described as “a
critical juncture” in such a way as to deprive the cross-examination of
its force. While I would have no hesitation in accepting
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that
there are occasions when interventions by a trial judge in either civil or
criminal cases being tried by a jury can be so prolonged and of such a nature
as to be unfairly disruptive and even give the jury the impression that he or
she is leaning in favour of one side of the case, this was most certainly not
so in the trial under consideration. The intervention complained of was, in my
view, legitimate and it is stretching credulity to suppose that it could have
had any critical effect on the jury’s deliberations. I am satisfied that
this ground of appeal has not been made out.
Conclusions
47. For
the reasons stated, I am satisfied that the trial judge was wrong in law in
permitting the cross-examination by counsel for the defendant of the plaintiff
as to previous proceedings for defamation instituted by him. I would,
accordingly, allow the appeal and substitute for the order of the High Court an
order directing a new trial on all issues.
© 2000 Irish Supreme Court
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