High Court of Ireland Decisions
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URL: http://www.bailii.org/ie/cases/IEHC/2001/234.html
Cite as: [2001] IEHC 234
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Cooper-Flynn v. RTE & Ors [2001] IEHC 234 (5 April 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/234.html Cite as: [2001] IEHC 234 |
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THE HIGH COURT
1998NO.8110P
BETWEEN
BEVERLEY COOPER-FLYNN
PLAINTIFF
AND
RADIO TELEFIS EIREANN, CHARLIE BIRD
AND JAMES HOWARD
DEFENDANTS
Judgment of Mr. Justice Frederick Morris Delivered on the 5th April 2001
This matter now comes before the court for a determination on the issue of costs.
The action was heard before a Jury over a period of 28 days. The Plaintiff claimed that she was libelled in a number of television and radio broadcasts in which it was alleged that she induced the Third Named Defendant to evade his lawful obligations to pay tax by not availing of the tax amnesty and moreover declined to return an investment which he had made in the CMI Personal Portfolio to him for the purpose of paying the tax. It was also alleged that she had induced others to invest in the CMI Personal Portfolio and had pointed out to them in the course of doing so the advantages which the investment had for tax evasion.
The Plaintiff denied ever having spoken to Mr. Howard and in particular denied ever making the statements which he attributed to her. Moreover she denied ever advising or encouraging other persons to purchase the CMI Personal Portfolio for the purpose of evading tax.
The following questions were put to the Jury at the end of the case:
(1) Had the Defendants proved that the Plaintiff induced the Third Named Defendant to evade his lawful obligation to pay tax by not availing of the tax amnesty. To this question the Jury answered "No."
The questions went on: If the answer is "No" proceed to question no. 2. If the answer is "Yes" proceed no further.
(2) Have the Defendants proved that the Plaintiff advised or encouraged other persons being those referred to in the evidence to evade tax. To this the Jury answered "Yes".
In view of this finding and the finding on question (3) namely that the Plaintiffs reputation had not suffered as a result of the publication to Mr. Howard question (4) was not of relevance.
To question (5) the question as to damages, the Jury answered "Nil"
It will be seen therefore that the first matter that was in contention between the Parties namely what conversation, if any, took place between the Plaintiff and Mr. Howard was answered in her favour. It is correct to say that it was the broadcasting of this alleged conversation on a number of occasions by RTE which brought this matter to a head. It is also correct to say that notwithstanding the Plaintiffs repeated denials that any such conversation took place and notwithstanding her demands for a withdrawal and an apology RTE continued to broadcast this report both on radio and on television.
It is probably correct to say that it was because of the fact that the Second Named Defendant, Mr. Charlie Bird targeted the Plaintiff and in his reports repeated the allegations that the Plaintiff had little option since she is a member of Dail Eireann and was a member of the Public Accounts Committee she was left with little alternative but to appropriately react to the allegations.
She instituted proceedings claiming damages for liable against RTE, Mr. Bird and Mr. Howard.
In determining the issue of costs Counsel for the Plaintiff makes the case that by obtaining a favourable answer to question no. 1 the Plaintiff has been to a large extent successful in her action even though the Jury have not awarded damages.
Order 99 Rule 1 of the Rules of the Superior Court provides Subject to the provisions of the Acts and any other Statutes relating to costs and accept as otherwise provided by these Rules (3) the costs of every action, question or issue tried by a Jury shall follow the event unless the court, for special cause to be mentioned in the Order, shall otherwise direct.
It is important, I believe, in considering the leading text book on this topic, Gatley on Libel and Slander to which I have been referred to appreciate that many of the clear statements of law contained on the section relating to costs are based upon the English Rules of Court. Having read the relevant Rules of Court which are referred to in the Judgment of Sir Thomas Bingham Master of the Rolls in Roache v Newsgroup Newspapers Limited & Others 1998 EMLR 1611 am satisfied that the English Rules of Court allow the Trial Judge a greater discretion on the question of costs than the Rules of the Superior Courts in this Jurisdiction. Here, as has been seen, it is provided that costs follow the event, that is to say that the Winning Party is to obtain an Order for costs to be paid by the other Party, unless the court for special cause otherwise directs.
Counsel for the Plaintiff makes two submissions which he says constitute "special cause" within the meaning of the Rule and therefore even if the court were to hold that the Defendants had succeeded in the action there was justification for the court departing from the general rule. These special causes are as follows:
(a) It is submitted that a fundamental issue that developed during the hearing and is identified as such in that it is allocated a special question on the issue paper (question 1) is whether the Plaintiff spoke the words alleged to Mr. Howard. He submits that the Plaintiff has succeeded in this issue and that the court is required to have regard to this and treat it as a "special cause" within the Rule.
(b) The second basis upon which Counsel submits that there is "special cause" in the case is, in a variety of ways, the conduct of the Defendants both before and during the case and the manner in which the case was met in court. I shall deal with these matters later on.
With regard to Counsel's first Submission:
I have been referred by Counsel to Reynolds v Times Newspapers & Others 1998 3 ALL ER 961 where the Court of Appeal in England had to consider a situation similar to that which arises in this case. The Plaintiff instituted proceedings claiming damages for an allegation which he alleged amounted to dishonesty on his part. At the hearing the question left to the Jury was "Is the allegation complained of by the Plaintiff in substance true?" To this the Jury answered "No". This represented a major success for the Plaintiff however the Jury went on to award the Plaintiff no damages.
Among the issues which went on appeal was the decision of the Trial Judge on the question of costs. He refused the Defendants their costs of the action up to the date upon which they had made a lodgment in court. The basis upon which the Trial Judge founded that decision was that by obtaining a favourable verdict on the first question and notwithstanding the fact that the Plaintiff had been awarded no damages he had nevertheless obtained "something of value".
This phrase "something of value" had its origin in Roache v Newsgroup Newspapers Limited. In that case the Plaintiff in a defamation action obtained a favourable verdict but only obtained the same award of damages as the amount lodged in court and the issue arose as to whether he had in fact obtained "something of value" by the favourable verdict.
In Reynolds v Times Newspapers the Court of Appeal ordered a retrial of the Plaintiffs action but had this to say in relation to the Judge's decision on costs.
"Since this Court is ordering a retrial, and the costs below will be at the discretion of the Judge at the retrial, it is not necessary for us to express a definite view on this cross appeal. However we are of the clear opinion that, had the Judge awarded the Defendants the whole of their costs, it would not have been right to interfere with such an Order; and we are doubtful whether, in the light of the Jurys' answers, the way in which the Judge actually exercised his discretion could be supported. The Judge did not give any subsidiary reasons relating to the conduct of the trial The only reason which he gave, that the Defendant did obtain "something of value "from the Jury's first question seems to be contradicted by Mr. Reynolds 'failure to obtain any real vindication."
While decisions in another Jurisdiction are in no way binding on me as is the practice in all Jurisdictions regard is had to decisions in other Jurisdictions and if they are found to be persuasive they are followed.
In the present case the issue which I have to consider is whether by obtaining a finding from the Jury that she did not induce Mr. Howard to evade paying his lawful taxes the Plaintiff has obtained something of value.
It is beyond doubt that if this were the only issue in the case it would be of immeasurable value but coupled with the finding of the Jury that she had in fact advised and encouraged other persons namely Mr. Duff, Mr. Rowe, Mrs Quigley and Ms Hawe to evade tax the finding is in my view valueless and accordingly does not constitute "special cause" for the purposes of the Rule.
With regard to the Second Point raised by Counsel:
Counsel for the Plaintiff points to a variety of ways in which he says the conduct of the Defendants was such as to bring the case within the definition of "special cause". He points, for instance, to what he alleges was the failure of Mr. Bird to check on the story before he broadcast it. He submits that an examination of the papers associated with the case would have shown the name of Patricia Roche on the papers and alert him to the likelihood that the story was false. He points to the fact that Mr. Howard was in error in a number of the details which he provided in relation to the investment. He points to the fact that Mr. Bird targeted Ms Cooper-Flynn by advertising in the local paper, circulating in the area in which Ms Cooper-Flynn did business. He points to what he describes as the information which he received from "an anonymous source" and finally he points to what he submits are inconsistencies and frailties in Mr. Bird's evidence which bring the matter within the definition of "special cause" and asks the court to depart from the ordinary rule in these circumstances.
I am unable to identify anything in any of the criticisms referred to by Counsel, which may or may not be correct, which are of such a grievous nature as could cause me to depart from the general rule. In my view all of these matters would be of extreme relevance if in fact the Jury were to address the issue of damages but in this way and in this way only are they of relevance. I accordingly reject Counsel's submissions that there should be a departure from the general rule.
Apart from the submissions advanced on behalf of the Plaintiff by Counsel a number of other submissions have been made to me by Counsel on behalf of the Defendants which in my view have merit. It is submitted by Counsel on behalf of the First and Second Named Defendant that the resolution of the matters in contention in question no. (1) in favour of the Plaintiff is of no significance so long as the Plaintiffs character has suffered no material damage. He submits that the "cause of action" only arises when defamatory matter is published causing damage to the Plaintiffs character. He submits that since it has been found by the Jury that prior to the commencement of the proceedings the Plaintiffs character was flawed, that the resolution of question no. (1) in her favour is irrelevant. I believe this to be a correct statement of the legal principles involved.
Accordingly the Order that I make is that I enter Judgment for the Defendants and I award the Defendants costs against the Plaintiff. The costs will include all reserve costs.