Defamation Law

This post is not about the facts of O’Flynn v Creighton, currently at hearing. Except for one fact. How is Lucinda Creighton going to pay for her legal representation? She is in the middle of a very expensive form of litigation. The costs are particularly high in defamation actions.

Leaving aside the fact that she is in receipt of a substantial income as a Minister of State, there is no Legal Aid for defamation actions. Even if she were as poor as a church mouse she would not get legal aid.

So what? Why should anybody get legal aid in such a case? Because without some funding help, a person might not get justice.  It is impractical to think that justice is possible for a lay litigant. In the Irish court system, the judge is not intended to help one party at the expense of the other. If that happens in a case with a lay litigant (as it most likely would), the help will be minimal; otherwise the party with the legal representation will simply appeal to a higher court and have no difficulty finding grounds for the appeal.

What has this to do with Lucinda Creighton? Well, it brings to mind the McLibel case. Ultimately, the UK itself lost the McLibel case. Ireland is perfectly poised to follow it to ignominy.

Ireland’s continuing failure to make proper, modern provision for the funding of litigation of any type (except, minimally, Family Law) is a scandal and will eventually cost a lot of money.

In the nature of things, accusations are leveled at opponents in court. These accusations vary in nature and import. The most serious are found in criminal proceedings. There, the State pursues the defendant with a view to punishing him/her, possibly with imprisonment. Few criminal proceedings do not imply a moral failure in addition to a breach of the law.

However, even civil proceedings following a road traffic accident will generate pleadings criticising the defendant. They, too, may imply a moral failure on the part of the defendant, or, just as pertinently, may be construed as doing so.

Construction may be everything; if the object of criticism thinks the criticism may lower him/her in the estimation of right-thinking members of the community he/she may sue for defamation. Absolute privilege is a defence to a defamation action and, under Section 17 (2) (i) of the Defamation Act 2009, attaches to reports published of proceedings before the Irish courts whether in the Republic or in Northern Ireland. The Section reads;

“…it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…… a fair and accurate report of proceedings publicly heard before, or decision made public by, any court-….”

To avail of this provision, the proceedings must have been held in public. This means that, for instance, the content of pleadings or an affidavit not opened in court will not be covered by the provision. (The writers of such pleadings or affidavits are protected, with absolute privilege, under Section 17 (2) (g) of the Defamation Act 2009).

The reporters of those pleadings or affidavits, if they are not made public in the court proceedings (i.e. not opened in court) are protected by qualified privilege under Section 18 of the Defamation Act 2009.

What if the judge, for instance, mutters “…I’ve read the affidavit…” and moves on? Has it been opened? Is it reportable?

That is a current issue in the UK.

HERE is the legal submission, in skeleton form, of the Guardian newspaper on the entitlement of the newspaper to have access to the papers upon which the [UK criminal] Courts are making or going to make their judgments.

See HERE for a statement relevant to this question in an Irish context.

So, before you can publish “a fair and accurate report” you must access the material. There is no right of access, under the Freedom of Information Acts, to Irish court records. In the High Court the records are under the control of the President of the High Court and in the Circuit Court under the control of the President of the Circuit Court.

Currently, in the High Court, civil pleadings are no longer filed in the Court. They are simply exchanged between the litigants and, later, a booklet of pleadings is delivered to the Court to facilitate the hearing of the action.

All of this is in considerable contrast to US courts. There, the general public has access to the court records. Indeed, they are often published on the internet by the court authorities. This is essential, for instance, in relation to a class action. There, the general public must be able to understand the issues to know whether to subscribe to the proceedings as an injured claimant.

When will Ireland catch up with the UK, not to speak of the US?

One of Ireland’s newspapers reputedly aspires to be the Paper of Record. To be serious on the point it ought to have this vainglorious claim beneath its masthead; it does’nt, correctly.

It cannot be such, because of its necessarily accepted constraints. A true Paper of Record would explain. No Irish newspaper explains. They cannot, because to explain is to judge. To judge is, often, to defame. No average newspaper (in Britain or Ireland) can defame persistently and survive.

What the Paper of Record needs is a lexicon of terms which are inaccurately defined, like “cute hoor”. (Click HERE to read its inadequate definition).

Let us insist that it is flattering to say of the Pope, say, that he is a cute hoor. (He is not). We would be free then, with such a lexicon, to say what we think of our public servants; especially those who are Secretaries General of Government Departments, or those who, against reason, are trumpeted (often by themselves) as “independent” in filling some regulatory role or other.

This policy would have drawbacks; immigrants to Ireland would have to learn the conventional meaning of terms and then the real meaning. (It would be important to ensure they cannot sit on juries until they are fully inducted into Irish life. We have no problems with burkas; just meanings). (What would be the run of conversation between an Examiner and an immigrant qualifying for jury duty?).

The policy may have other drawbacks; what if the immigrants don’t know when to stop?

They might start referring to Mr. So-and-so as “a popular barrister in the Law Library”; or Judge So-and-so as “respected”. These terms have, in fact, meanings which are the reverse of their ostensible meaning.

Hmm.

The Paper of Record is written like this.

What is it really saying?

The power of mythical thinking has to be experienced to be believed. Currently, in Ireland, nobody is more subject to its power than the judges of the Superior courts. (With the possible exception of the Irish catholic bishops).

Of course the legal profession is subject to the same myths as the judiciary, but that would not long outlast (I hope) the escape of the judiciary from their myths.

The myth of immediate interest is the fairytale that the Dail (Ireland’s lower parliamentary chamber) has any influence in the making or passing of legislation. It does not; legislation is originated by the Cabinet and driven through onto the statute books.

We know who is responsible, therefore, for the requirement that personal injury litigants must swear an Affidavit of Verification asserting the truth of the factual assertions set out in pleadings commenced on their behalf.

Willie O’Dea is in the Cabinet. He says, of his factually incorrect Affidavit, that when he realized his error in his Affidavit, he “put his hands up” and admitted the error. The Cabinet has endorsed this as the correct response. Consequently, no judge can, or should, ask for more of personal injury litigants.

Willie O’Dea’s understanding is not new or peculiar. His Affidavit will have contained the averment:

“I make this affidavit from facts within my own knowledge save where otherwise appears, and where so otherwise appearing I believe the same to be true.”

This statement is about appearances and beliefs. Willie was right to emphasise that his beliefs are the important thing and, of course, we know that appearances can be deceptive, especially to deponents in Affidavits.

That, clearly is what the Cabinet meant and means by the legislation imposing the obligation on personal injury litigants.

Judges take note.

Oddly, nobody has adverted to the role of the Attorney General in the Willie O’Dea kerfuffle. The Attorney General is the lawyer to the Cabinet. He clearly endorsed the view of the Cabinet, did he not? Maybe not. Whether he did or did not is not important. We are not entitled to know and nobody is asking.

But we should see him as he is, warts and all. We should not have to endure the consequence of more mythical thinking by the judiciary (and the Law Library). The Attorney General is down in the arena with everybody else. He fights for his clients. He represents their interests. He should not be accorded the deference he gets from the judiciary and the Law Library. (According to the Bar of Ireland, the Attorney General is the Leader of the Bar).

One can imagine Mr. Cowen’s feelings when he learned of the hanging of two pictures of him in public, in which pictures he was shown, by implication only, as naked; firstly, possibly in the loo and secondly, holding his underpants.

The pictures were to some degree, caricatures.

It is a defamation to lower someone in the eyes of right thinking members of society. If the defamation is a picture it is a libel. A libel is the making of statements in permanent form that disparage the plaintiff or tend to bring him into ridicule or contempt.

For a small review of Irish law on defamation see this earlier post HERE.

Mr. Cowen is not a normal person; he is the Taoiseach. As such, he must accept that he is open to comment and attack more than a private person. In short, attacks on him have the benefit of qualified privilege where such attacks, directed towards private persons, would not have that privilege.

What do the pictures say of him?

Possibly the following;

He is a human being;

He is a failure as a politician (he is without cover and “is in the toilet”)

He is not handsome;

He is unashamed of his failings/disadvantages:

These are mild statements to be made of a Taoiseach. They were made before, as appears to be the case, he procured the confiscation of the pictures by the police, including other pictures made by the same artist with a view to prosecuting the artist on public decency (or indecency) grounds.

Now to say that of the Taoiseach is a serious charge. But it is warranted, given the events. In the light of that, the implied comments of the pictures are mild.

Comment on the situation at Anglo Irish Bank is, if it is fair, privileged. The matter is one of public interest.

This means it is open to people to speak about the situation freely without worrying that they might be the subject of legal proceedings for defamation.

See an early post HERE dealing with, inter alia, FAIR COMMENT.

Should judges express their opinion?

The answer is yes, but appropriately.

Adrian Hardiman, a member of the Supreme Court expressed his opinion of Irish legal reporters recently (script seen HERE), and was attacked by, inter alia, the NUJ, HERE. (No comments, please on my use of latin ["inter alia"]).

In fact a court reporter has a very difficult job. The newspaper owner and the editor are very anxious to report what happens in court; any fair and accurate report is privileged and they are relieved of the phenomenal effort and anxiety required to prove the fact or facts of the proceedings.

However, the method of exposition in a court is not conducive to making clear what is actually happening in a case. Often, the case is developed through a series of motions and there may be considerable time lapses between the hearing of the motions. Even in a trial the “opening” by counsel may not reflect the actual events which take place in the trial. Proper “fair and accurate” reporting ought not to be a “quick and dirty” operation but the reporter may have no alternative to adopting that as a solution.

It is an open secret that court reporters are assisted by the legal practitioners. They are frequently furnished with a copy of the pleadings. These will contain some essential facts, at least. However, the reporter needs to know that what is pleaded may not necessarily be supported by evidence at the trial.

This relationship is fraught; the reporter should know that legal practitioners are seldom without an agenda of their own. That agenda will be more or less benign depending on the circumstances.

Equally, for a reporter to produce the kind of report that will please a judge is not necessarily a good thing; many judgments are overturned on appeal, sometimes because the judge’s conclusions were not supported by the evidence. Some judges are better than others (to put it mildly).

Consequently, a reporter should not look for the “core” of his or her report in the pleadings or in the characterisation of the case by counsel or in some diatribe by the judge (unless he or she is working for a “red-top”; then, always go for the diatribe).

With the Irish economy in retreat (recession), lawyers will still find a need for their services.

In truth, there is probably a large core of business for Irish lawyers, regardless of the state of the economy. (And that takes no account of the possibility of duplicating the activities of Allen & Overy).

The real issue is not the availability of work, but the financing of the work.

Ireland has seriously handicapped its legal profession, relative to the UK. There, it is possible, under Conditional Fee Agreements (“CFAs”), to recover double (say) the standard fee in court taxation if the lawyers have agreed to act on a “no win, no fee” basis.

In Ireland no such official arrangement exists.

Of course the real loser from the State’s failure is the Irish citizen. At very little cost to the State, it could empower victims to defend their interests and vindicate their rights in fields as diverse as defamation and personal injury litigation.

The legal basis, in the UK, for CFAs is s.58 of the Courts and Legal Services Act 1990, as substituted by s.27(1) of the Access to Justice Act 1999, the Conditional Fee Agreements Regulations 2000 (SI 2000 No 692), amended by the Conditional Fee Agreement (Miscellaneous Amendments) Regulations (SI 2003 No 1240) and the Conditional Fee Agreement (Revocation) Regulations 2005 (SI 2005 No 2305).

Under the Regulations, the plaintiff client will become liable for fees only if he/she:

a) fails to co-operate with the legal representative;

b) fails to attend any medical or expert examination or court hearing which the legal representative reasonably requests him to attend;

c) fails to give necessary instructions to the legal representative; or

d) withdraws instructions from the legal representative.

This failure by the Irish State is particularly glaring in the light of the fact that there are, currently, proceedings at hearing, in Dublin, intermittently, which potentially, if not actually, are financed by CFAs.

Those proceedings are the Omagh civil action arising out of the bombing of Omagh.

Why should Omagh be different to Dublin?

1. The Irish Bar is pear shaped. More business is needed and should be spread better. In Ireland, Defamation law is fairly stable and favours the Plaintiff.

2. This blog has previously (obliquely) adverted HERE to the possibility of “litigation tourism” (that’s the latest derogatory term for “international arbitration”.

3. Captain James T. Kirk has publicly claimed Mr. Sulu is psychotic (See it on Utube HERE)

These circumstances are at once a spur to action and a propitious occasion to use the Bar Council’s “arbitration” facilities for an interesting piece of business.

After all, both Captain Kirk and Mr. Sulu are known and have a reputation of sorts in this jurisdiction.

Should the Chairman of the Bar Council not propose the Bar Council’s premises for a trial of the issue as to whether Captain Kirk has defamed Mr. Sulu and/or whether Mr. Sulu defamed Captain Kirk?

In Ireland, speaking generally, legal proceedings take the form of a contest. The contest is conducted according to rules, but a contest it is.

Contests do not guarantee proper, fair outcomes but they are superior to the alternative, no hearing to one (or more) party.

The phrase to describe such hearings without a party on notice is “ex parte”.

It refers to a court application brought by one person in the absence of and without representation by, or notification to, other parties.

In principle, such an application is a breach of fair procedures (as secured by the Irish Constitution) (and the European Convention on Human Rights).

Article 6.1 of the Convention reads:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Nevertheless, such applications take place and courts make orders pursuant to them. The saving feature is that they are, to be proper, of a strictly temporary nature. The order will (or aught to) be limited in its effect to a time for the hearing of an application (“interlocutory”) (the other party having been notified of the intended application) to continue or renew the order made ex parte.

The applicant party will have notified the respondent party of the making of the order ex parte (and the order will bind the respondent forthwith) as well as giving notification of the date and time for the making of the “interlocutory” application.

Ex parte applications will, generally, be based on evidence presented in, say, affidavit form. It can happen that, subsequently, the evidence so presented is shown to be false or mistaken or generally unreliable.

For this reason a court has to be very careful in making orders ex parte. The absolute necessity for the making of the order without notification to the respondent must be shown. Considerable damage may be inflicted on the respondent, unfairly, by an order restraining the respondent from acting in some matter or fashion.

In addition, the publication of a record of the ex parte proceedings in court may libel the respondent. Under Section 18 (1) of the Defamation Act 1961, newspaper (and radio) publication of transactions in court are privileged, subject to the report being fair and accurate.

Arguably, to report the contents of the grounding affidavit or other allegation and/or the terms of the order, and to fail to report that an application was made ex parte (with an explanation of the meaning of that phrase) is not fair.

If that argument is accepted the report will lose its privilege and the publisher will be liable for the libel.