New Appeal: Does the media have a constitutional right to publish material, which overrides a jury verdict of defamation?

In this determination (McDonagh v Sunday World) the Supreme Court granted McDonagh leave to appeal the decision of the Court of Appeal, which overturned a High Court (judge and jury) award of €900,000 for defamation.

The Court determined that McDonagh had raised five issues as being issues of general public importance, or that it is in the interest of justice that they should be determined by the Supreme Court:

(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 [how the evidence of a Garda witness should be treated] 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.

Background

In 1999 the Sunday World published an article describing McDonagh as a drug dealer, a loan shark, a tax evader and a criminal. McDonagh issued High Court proceedings seeking damages for defamation. The Sunday World’s defence was that the allegations were true. The jury found that the Sunday World’s evidence did not prove that McDonagh was a drug dealer or a loan shark; but it had proven that he was a tax cheat and a criminal. The jury awarded McDonagh €900,000 in damages. The Sunday World appealed that decision to the Court of Appeal.

The Court of Appeal (here) overturned the jury decision and award, stating:

  1. First, it is clear that the jury verdict so far as it concerned the drug dealing allegation cannot be allowed to stand. Viewed objectively, the evidence overwhelmingly pointed to the conclusion that the plaintiff was, indeed, a drug dealer associated with the drugs seizure at Tubbercurry. If the allegation was correct, the newspaper had a constitutional right to publish this information by virtue of Article 40.6.1.i and that right cannot be compromised by a jury verdict which was, in essence, perverse.
  2. Second, 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 plaintiff on that allegation. It would, however, be necessary for the jury to have been told in express terms that the failure by the plaintiff effectively to cross-examine Garda Doherty regarding the loan sharking admissions meant that such evidence carried considerable weight. It is true that the jury might elect to believe that the plaintiff’s denial that he made such a statement to Garda Doherty, but it would also have been necessary for the jury to have been warned in appropriate terms that the plaintiff’s credibility had, objectively speaking, been compromised. As the jury was not so instructed, I do not think that the verdict on the loan sharking allegation can be allowed to stand.
  3.  In these circumstances I believe that the Court should allow the appeal of the newspaper against the entirety of the verdict. As the drug dealing allegation has been found to be true, I would also dismiss that part of the plaintiff’s claim. It follows that I would direct a new trial on the loan sharking allegation only.
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