In a previous post I referred to Northern Irish interlocutory judgement in the case of Bridget O’Rawe and William Trimble Limited ([2010] NIQB 124).  The trial of the action has now taken place and the trial judgment has been delivered ([2010] NIQB 135). There is a BBC News report of the judgment.  This is one of the few libel cases to go to trial in recent times in Northern Ireland and the judgement is not only extremely detailed but provides long awaited clarification from the bench in relation to qualified privilege and particularisation of pleadings.

After four days into the jury trial both parties agreed to proceed by Judge alone.  In light of the lack of contentious issues of fact the Judge commended this decision as

“a responsible attitude by counsel . . a Reynolds defence is a matter for the judge to determine if the publications in question were in the public interest and, if so, thereafter to evaluate the defendant’s conduct against the standard of responsible journalism”.

He went on to recognise that “It may well be therefore that some libel actions should be tried in stages without a jury”.  He found it wise that due to the overall complexities involved in the trial, counsel agreed that in this case all stages of the trial should be determined by judge alone.

The Claim

The plaintiff, who had been employed by the Sperrin and Lakeland Trust as a director of Corporate Services between 1997 and May 2006, brought proceedings for libel against the owner and publisher of the Impartial Reporter, a weekly newspaper circulating largely in Counties Fermanagh and Tyrone with a circulation of 14000 copies per week.  Two articles were published in an editorial and newspaper article, and further 5 articles had been published on the publisher’s website.  Whilst the website articles fell outside the one year they were included in the claim as they were archived on the website and could thus be found within the limitation period, a proposition not challenged by the defendant.

The Defence

The defence denied the meanings and relied upon various facts to include the plaintiff’s role in a body responsible for the management of the Erne Hospital Enniskillen where the death of this child occurred.  This child was one of three children who died of hyponatraemia in Northern Ireland and became the subject of an independent public enquiry.  At which time the Police Service of Northern Ireland commenced an investigation into the death of this child which resulted in a decision by the PPS that there be no prosecution.

In addition to justification the defence relied upon qualified privilege on the grounds that the publication of the newspaper and website articles was in the public interest and further that the editorial article constituted honest comment on a matter of public interest.  The public interest argument was based upon accountability to the general public of persons in authority for their actions taken in the course of their office.  Finally, the defendant relied upon mitigation or extinction of any compensation for reasons set out at paragraph 18 of the judgement.

Meanings

The defendant sought to justify on a level 3 Chase meaning, namely that there were grounds to investigate that the plaintiff had been involved in the alleged discredible conduct.

Whilst the plaintiff had pleaded a level 1 meaning, the judge considered that a plaintiff should not be precluded from contending for some lesser meaning at trial by doing so.  He suggested his preferable view, contrary to Jameel v Times Newspapers [2004] E.M.L.R 31 was not that the plaintiff must plead the exact levels of meaning but rather their particulars of claim could plead the single highest meaning.  Ultimately, he considered it was for the judge to rule on the issue of meaning, but this is qualified to a meaning in the same class as that set out in the particulars and not some wholly different meaning.

In any event, in this case the judge agreed that the substance of the meanings were capable of bearing a level 1 meaning.

In light of the finding that the words were defamatory the defendant chose not to justify the words complained of.

However, when considering the five website articles the defendant asserted that due to the plaintiff pleading cumulative meanings to all articles and by not ascribing any particular meaning to each and every article it prevented the defendant from raising potentially separate defences to each article.

The judge remarked:

“Statements of claim in an action for defamation are extremely important.  Parties must set out their respective cases with as much clarity and openness as possible.  There must be sufficient information to inform the other party of the case he has to meet.  This must include all the facts necessary to formulate a complete cause of action”.

Rejecting the plaintiff’s contention it was concluded that the pleadings deprived the defendant from knowing which allegations were made in relation to each particular article, as the plaintiff had not relied on innuendo which meant she could not introduce extrinsic facts from one article to another thus the articles could not be read together as a series.

Ultimately it was accepted that it was unacceptable pleading of a case to expect the court or defendant to attempt to work out which allegation is connected to which article where the plaintiff has not made an attempt to do this herself.  Such practice was foreseen as only acceptable where the complained matter consists of related material.

Even so, where possible the plaintiff should give the page references of the newspapers or if it is too long it should be included in a schedule.

In the circumstances therefore he concluded: “the medieval maxim iudex secundum allegata et probate decider debet should prevail” and he found the articles were not part of a series to be read together.

Qualified Privilege/Reynolds

It was remarked that where a defendant seeks to rely upon a defence of qualified privilege it must demonstrate why the nature of the subject matter as a whole was such that it was in the public interest for it to be published.  This includes any untrue allegations published and the more serious the allegation the more important it is that the untrue allegation should make a real contribution to the public interest element.

Whilst the judge found the defendant passed the public interest test, in that it was in the public interest to publish reference to the plaintiff as to her role in the Trust, he confirmed that it must be done responsibly.

Once the defendant passes the public interest test it must prove that the steps taken to gather and publish the information were responsible and fair, that is proving the defendant acted in accordance with the tenets of responsible journalism, Reynolds v Times Newspapers Ltd [2001] 2 AC.

The defendant relied upon 23 sources and the court found these sources on the whole as credible and noted that “in general terms the newspaper had gone to great lengths to verify many aspects of its coverage” and the tone was noted as lacking sensationalism but not subdued.  However, the failure to make pre-publication contact and include comment from the plaintiff led the judge to conclude the newspaper failed to conform to the standards of responsible journalism and thus it could not avail of the Reynolds defence.  This conclusion was arrived at ‘in light of the seriousness of the allegations’ for the following reasons inter alia:

  1. The escalation of allegations which went beyond an alleged Trust cover up to allege a police investigation of her brought the allegations to a nature so serious that in the judges view it demanded that a responsible journalist must seek to obtain comments from the plaintiff to enable her gist of the story to be included in the publication.
  2. The fact it knew the plaintiff had not been interviewed by the police despite the defendant’s allegation that papers were assembled for directions from the PPS.  This also called for pre-publication comment.  It was noted her pre-action correspondence asserted her innocence and it was noted that if this had been included by way of prepublication comment it may have altered the view of a reasonable reader’s perspective of her involvement.
  3. There was no urgency about the publication which would have precluded steps being taken to contact the plaintiff. It was noted the story was not “a perishable commodity” and contact with the plaintiff “would have been easy”. The Judge did however, note that she was offered an opportunity to provide her side of the story post publication, but this was considered too late and should have been done pre-publication.
  4. The decision not to invite her to provide a comment before printing the articles was cited as “too casual an approach and fell outside the ambit of discretion given to editors”.

The judge then carried out a balancing assessment between Article 10 and 8 after he concluded that the defendant could not rely on Reynolds due to failure to seek comment from the plaintiff.  In doing so he significantly found protection of reputation as a major value afforded by Article 8.  In noting the duties and responsibilities carried with Article 10 he found that the lack of prepublication contact was a failure in carrying out those responsibilities.

Appropriately the judge accepted that the court must invest editors of newspapers with the discretion to make editorial judgements particularly where, as noted in Jameel “In the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner”. He continued that it was not for the court to substitute its own views for those of the press as to what techniques of reporting should be adopted by a journalist.  Gatley records that the court should allow a wide margin of professional appreciation to the journalist and the trial judge endorsed this authority.

Compensatory Damages

All three heads of damages were considered: the principle element of injury to reputation; injury to feelings and vindication.

It was correctly noted that an award of damages is a restriction upon Article 10 and must be justified pursuant to Article 10(2) and proportionate to the aim to be achieved.  In addition to this the judge reminded himself of the current value of money and as a guide he had regard to a number of comparables relevant to personal injury awards in this jurisdiction.  Whilst he had consideration of English Court of Appeal defamation awards he ignored English jury awards accepting the plaintiffs argument that England and Wales have much lower personal injury awards then in NI. He considered the plaintiff’s conduct, the circulation, her personal circumstances and the absence of a retraction or apology as relevant to the question of damages.

Aggravated damages were rejected after consideration and instead damages were found to be sufficient as compensatory damages only.

The defendant pleaded mitigation in its defence which included inter alia matters directly relevant to the contextual background facts.

The Judge awarded £44,000.00 in favour of the plaintiff after applying a 20% discount in mitigation having regard to the directly relevant contextual background.

Conclusion

This judgement is the first indication of how the current libel laws are being applied in this jurisdiction.  It has provided an extremely useful overview of the defence of qualified privilege.  Arguably, in this case the non-exhaustive list set out by Lord Nicholls of Birkenhead, was stringently applied.

It is difficult to assess whether or not a jury would have arrived at the same conclusion as the judge.  The judge agreed that the publication was in the public interest and a jury may have evaluated the defendant’s conduct as more responsible and fair than what was ultimately decided here.

The defendant failed the responsible journalism test by its failure to include the plaintiff’s version of events.  It was clear that the defendant did not publish its articles in a slipshod manner considering the 23 sources and indeed the public debate surrounding the issues.  For instance, at paragraph 83 of the judgement it was reported that the defendants historical contact with the Trust led him to expect a no comment from the plaintiff had she have been contacted prepublication, but it would seem that regardless of any such stance being adopted as a standard approach, where allegations are of a serious nature there may be, such as there was here, a higher burden upon the defendant to ensure contact is made prepublication.

It is certainly useful to have as thorough a judgement as this which not only indicates the views from the judiciary but has provided clarification to pleadings and damages, something which has not been done for some time.

Olivia O’Kane is specialist media lawyer at Belfast solicitors Carson McDowell