High Court of Ireland Decisions

THE HIGH COURT

2025 [IEHC] 85

[Record No. HCA 2024/36]

 

BETWEEN

APRIL GALLAGHER    

PLAINTIFF/APPELLANT

 

AND

 

O'BRIEN RETAIL CONCEPTS LIMITED

DEFENDANT/RESPONDENT

 

Judgment delivered by Mr. Justice Micheál O'Higgins on 10^th February 2025

Introduction

1.                  The plaintiff seeks damages for defamation arising from a visit to the defendant's off-license on the 3^rd April 2020. She was with her sister-in-law, Kathleen Gallagher. The defendant is the owner and occupier of the shop. The plaintiff and her sister-in-law intended to buy a bottle of wine. The plaintiff lost her case in the Circuit Court and this is her appeal.

 

Summary of the plaintiff's evidence

2.                  The plaintiff's account was that she and Kathleen had been in the shop for a few minutes. She was familiar with the shop as it was near her home, and she was there quite often. They had selected a bottle of wine, when an employee who was beside a stack of boxes on the shop floor shouted, "you're barred for shop lifting". The plaintiff and her sister-in-law were taken aback and formed the view the lady was referring to them both. They replied, "What do you mean?" and the employee allegedly responded, "You came in here on St. Patrick's Day and you were shoplifting".

3.                  The plaintiff said that she challenged the employee on this and explained that she had been in the shop two days previously and had been served without issue. Another staff member then said that she had CCTV footage on her phone of the incident on St. Patrick's Day. This staff member went out to her car, and the plaintiff followed as she wanted to see the footage. The staff member got back out of her car and was standing in the doorway of the shop. She showed the plaintiff a picture on her phone of a lady with long black hair. The plaintiff viewed the photograph and said, "that's not me". According to the plaintiff, the lady said "sorry, but I'm not talking about you, I'm talking about her" (referring to Kathleen). Kathleen then looked at the phone and she too denied that she was the person in the photo.

4.                  The plaintiff says that the staff member then shouted across to one of her colleagues inside the shop "Now she is trying to say it's not her". The plaintiff indicates that she was very embarrassed and humiliated, particularly as this was her local off-licence. She said that there were five or six people in the shop at the time. She couldn't believe what had happened and left the shop.

5.                  In cross-examination, the plaintiff was asked why she had delayed in bringing the claim, and it was suggested that she had only done so after Kathleen decided to take a case. The plaintiff said she had been dealing with a number of family issues, and medical issues for her child. It was put to the plaintiff that there were inconsistencies between what she said in evidence, and what was stated in her civil bill. The civil bill methodically identifies 3 different staff members as having made allegedly defamatory remarks, and attributes specific remarks to 2 other staff members, whereas in evidence the plaintiff attributed the utterances to only one person, the staff member on the shop floor who was standing beside the boxes. That staff member later gave evidence for the defendant (detailed below).

6.                  The defendant's defence was reasonably narrow and was essentially an issue of identification. The defendant contended that the allegedly defamatory remarks of staff members were at all times directed towards Kathleen, and not to the plaintiff. Therefore, says the defendant, the plaintiff was not defamed.

7.                  Accordingly, the core issue I have to decide is a factual one, namely whether the allegedly defamatory utterances were made solely against Kathleen, or whether the plaintiff is correct that the utterances, properly interpreted, were understood to refer to her.

8.                  From this short summary of the issues, it will be immediately apparent that a number of issues are not in the case:

(1)   The defendant does not claim that the words spoken were true;

(2)   It was at no stage claimed by any witness, or put in cross examination, that either the plaintiff or her sister-in-law was in fact guilty of shoplifting;

(3)   No claim is made that the words were spoken on an occasion of qualified privilege;

(4)   No claim is made that the disputed utterances were not capable of a defamatory meaning, though there was much dispute about precisely what was said.

Absent witnesses and evidence

9.                  One other feature of the case is unusual. The plaintiff complains that there are notable gaps in the defendant's evidence, and tactical decisions not to call relevant witnesses. The shop had a CCTV camera system covering the premises and footage was sought by the plaintiff in discovery. No footage was produced in evidence. A still photograph referenced by some staff members, apparently taken from footage of an earlier incident on St Patrick's Day, was also not produced. Furthermore, no till receipt was produced to assist on the question of whether a bottle of wine was purchased at the time of the plaintiff's visit to the shop.

10.              More significantly, at least two staff members who were involved in the incident on the day were not available. Of three employees in the shop, only one (Nadine Maguire) was called to give evidence. Though two other staff members behind the till were specifically identified in the civil bill, and referenced in the evidence of the plaintiff, neither was called. Kevin O'Brien, the owner and managing director of the defendant gave evidence but he was not in the shop on the day in question.

11.              Obviously, whether witnesses are called, and which witnesses are called, are entirely matters for the party concerned. A court can only decide a case on the basis of the evidence heard from witnesses available on the day. Nonetheless, it is fair to note that a number of seemingly relevant witnesses on the defendant's side were, for whatever reason, unavailable to assist the court.

12.              Similar observations might be made about the CCTV footage from the day in question which was also unavailable. In my view, it was unfortunate that CCTV footage of the various interactions within the shop were not preserved by the defendant. Had the footage been preserved, it's likely that it would have captured some or all of the dealings between staff members and the plaintiff and/or the plaintiff's sister-in-law. This was an important omission because this was not a case about a single disputed conversation, occurring in one single area of the shop. Rather, this was a case about several conversations and dealings that took place between different individuals at different locations, both inside and outside the shop. As I say, it is unfortunate that prima facie relevant CCTV footage was not preserved as it would have assisted the court in piecing together what was, at times, quite a confusing jigsaw.

13.              Unfortunately, I have to say that I remain unclear on why this was so. It was initially suggested that the plaintiff was in effect to blame for this state of affairs because (a) she never sent an initiating letter of claim and (b) the initiating letter sent for Kathleen's claim was only sent on the 13^th May 2020, some six weeks after the incident. It was argued that the CCTV system recorded over itself automatically after 28 or 30 days, and therefore, because Kathleen's letter of claim was received after the 13^th May, the footage had been overwritten by the time somebody went to look for it.

14.              In point of fact, it emerged in evidence that that was probably not what occurred. The owner of the shop, Mr. O'Brien, was called to explain what had happened to the footage. It was put to him that one would expect that the CCTV would have been retrieved immediately after the incident or, at the very latest, the next day. Counsel for the plaintiff referenced the tension and unpleasantness of the incident itself, the fact a complaint had been made on the day, and the fact that Kathleen had phoned the next day to make a complaint and made it clear she was going to a solicitor. Mr. O'Brien appeared to agree with this and said the following:

"If it had - and I believe it had been, we misplaced it. We normally do keep a full file of all CCTV's. We do record - in a sense, do do it, but I actually believe in this case we potentially mislaid it after the fact."

15.              Mr. O'Brien did in fairness indicate that what he had been asked initially by counsel in evidence was what he had done to retrieve the footage after he had received the letter of claim, and he said that, at that point, it was too late because the footage had been overwritten. However, he then said the following:

"After the day of the incident or the day of the incident, I am not 100% certain what happened, if we recorded the CCTV, put it on a DVD or USB, but if we - we should have and if we did we misplaced it."

16.              In truth, therefore, the defendant is unable to explain what happened to the CCTV footage. It remains unclear whether it was downloaded onto a DVD or USB stick and, if so, what happened to it, whether it was viewed by anyone, or what it showed. All of this was unsatisfactory.

17.              Unfortunately, however, that's not the end of the list of gaps in the defendant's evidence. The still photograph from the CCTV footage of the earlier incident on St. Patrick's Day was not produced in evidence. Furthermore, no till receipts were produced that might have assisted in determining whether a bottle of wine was or was not purchased by the plaintiff on the day in question. While this could be said to be a minor "satellite" issue, it had a degree of importance as there was a factual dispute between the parties as to whether a bottle had been bought at all. It was the plaintiff's account that no bottle of wine was purchased in circumstances where she left the shop embarrassed and distressed, and that neither of them had been served. This was disputed by Ms. Maguire (day 2 pg. 26 line 32) who stated in evidence that the plaintiff was served because she wasn't in fact barred. Ms. Maguire, when asked if she ever thought of producing paperwork to show that a bottle of wine was actually sold, indicated that the receipts would have been in the till but that that wasn't her responsibility.

18.              However, the absence of the still photograph and any till receipts were minor matters compared to the unfortunate unavailability of the two employees who were behind the till. It is common case that one or both of these employees actually interacted with the plaintiff on the day and, according to the civil bill, made defamatory remarks about her. Their absence was not really explained, nor was there any evidence from whoever spoke to the plaintiff at the doorway of the shop when she was shown the still photograph. I will return to this issue presently because it seems to me to be of some importance.

19.              Continuing with the list of "absent witnesses", the court did not hear from the person who apparently instructed Ms. Maguire to say "Management says you are barred".

20.              This was potentially important because it would have assisted the court in determining whether Ms Maguire's remarks were directed at both ladies or, as the defendant argued, just Kathleen.

 

Summary of the evidence of Nadine Maguire

21.              Ms. Maguire said in evidence that "we were informed [by a staff member] that someone was going to come into the shop and we had to inform them that - to tell that the management said they were barred" (day 2 pg. 22 line 7). When the plaintiff and her sister-in-law came into the shop, they went over to the wine section and picked up a bottle. They then made their way to the till. The witness was asked if she knew these individuals and she confirmed that she had never seen them before. When the two ladies approached the till, she said to Kathleen "Excuse me" and Kathleen turned around. She then said to Kathleen "management said you are barred". The plaintiff turned and asked "Are you talking to me?" and Ms. Maguire said, "No I'm not talking to you". Ms. Maguire said that the plaintiff never said anything to her after that. Kathleen said, "It wasn't me, it wasn't me" and Ms. Maguire said "All I can say to you is that management said you are barred." That was when the staff member came back into the shop with a phone to show Kathleen that it was her in the photo.

22.              In cross examination, Ms. Maguire insisted that she only said to Kathleen that she was barred, and not the plaintiff. She was asked how that made sense in circumstances where she accepted that she didn't know either the plaintiff or her sister-in-law. Ms. Maguire responded, "because we were informed who they were".

23.              To my mind, this conflict on the evidence reinforces the point that it might have been helpful to have evidence as to precisely what instruction was given to Ms. Maguire by the staff member concerned, and whether it solely rated to Kathleen, which was obviously a key plank of the defence's case.

Consideration of the evidence

24.              Understandably, each witness gave evidence from their own individual perspective and recollection. In my view, all four witnesses did their best to give truthful evidence. However, there were aspects of the evidence of both the plaintiff and Ms. Maguire that were unclear and, in my view, quite confused. For instance, the plaintiff's insistence that Ms. Maguire had used the plural pronoun - "Management said ye are barred" – as opposed to the singular "you" - came across to me as being more wishful thinking than firm recollection. The plaintiff at all times stood firm in her belief that the accusatory remarks made by staff members were directed at her, not just at Kathleen. However, there were aspects of her account that were very confused and difficult to reconcile with the pleadings.

25.              On the other side of the coin, the evidence of the only liability witness called by the defence was also quite confused and at times contradictory. In evidence in chief (day 2 pg. 25 onwards) Ms. Maguire said a number of times that the plaintiff approached her and that she repeated to the plaintiff what the staff member had told her to say, namely "management says you are barred". However, she later corrected this and said this was said to Kathleen, not April. It was also very unclear how, taking the witness' account as accurate, she was able to identify and discriminate between the two ladies in circumstances where she had never met either of them before this.

26.              I want to stress that I found Ms. Maguire to be an honest and truthful witness who at all times sought to outline what she remembered. However, it is important to view her role in its proper context. In my view, on the day in question she was placed in a virtually impossible position by her employer. She was basically directed to make accusatory remarks towards someone who was about to come into the shop, without being told or trained how this should properly be done.

27.              The defendant's policy dealing with suspected shoplifters was put to Ms. Maguire in cross examination. The court was provided with a staff notice which was in the following terms:

"STAFF NOTICE

SUSPECTED SHOPLIFTING POLICY

ALWAYS BE ONE HUNDRED PERCENT SURE, BEFORE YOU STOP OR APPROACH ANYBODY THAT YOU MAY SUSPECT IS SHOPLIFTING.

NEVER APPROACH ANYBODY IN STORE.

ALWAYS WAIT UNTIL THE PERSON HAS LEFT THE SHOP AND DO IT AS DISCRETTALTY (SIC) AS POSSIBLE.

IF YOU SEE SOMETHING THAT YOU THINK IS SUSPICIOUS, CALL THE MANAGER OR SUPERVISOR AND THEY WILL INVESTIGATE FURTHER.

REMEMBER IF YOU ARE NOT ONE HUNDRED PERCENT SURE, THEN YOU CANNOT STOP THE PERSON..."

28.              Counsel for the plaintiff put to Ms. Maguire that, whatever was written down on the policy, and whatever training was given, that was not the approach the witness had been directed to take on this particular day. The witness agreed that all she said was "management says you are barred". She was asked whether April and Kathleen were present when she said those words and she confirmed they were at the till. She was pressed on this, and it was put to her that the first time it was said to the ladies "you are barred" was when they had selected the bottle of wine and were approaching the till. The witness agreed that that was the case. The witness said that April turned around and she said the words she had been told by management to say. April then asked, "Are you talking to me?" and Ms. Maguire said she replied, "No I'm not talking to you".

29.              Later on, to her credit, Ms. Maguire confirmed that she heard another staff member say "you were shoplifting on St. Patrick's Day". Ms. Maguire confirmed that was said by staff behind the counter:

"Q. Okay so you did hear that?

A.     Yes

Q. Yes. So one of the women behind the counter said "you were shoplifting on St. Patrick's Day"?

            A. Yes, like the lady that had the phone.

            Q. Yes?

            A. That's what she said as well.

Q. And she said something about "we have it on CCTV or I have it on my phone" isn't that right?

A. As far as I can remember that's what they said".

30.              Elsewhere she confirmed that she herself never said anything about shoplifting and then the following exchanged occurred:

"Q. Okay. And April said that the - another woman said "you were shoplifting on St. Patrick's Day"?

A. Yes, that's the other lady, I didn't say that.

Q. Yes, yes and then there was something about "and we have coverage of it" or "we have a still of it"?

A. There was a still of it

Q. Yes?

A. There was obviously a photograph

Q. And this other woman went out to the car?

A. Yes, went out to her car, yes."

31.              Later, Ms. Maguire accepted that the exchange regarding the still image on the phone happened after the initial approach by her to the two ladies. Ms. Maguire accepted that there was a discussion in the middle of the shop floor, however she gave somewhat conflicting evidence as to whether it was April that said "That's not me" when confronted about the still image, or whether this was said by Kathleen. She indicated (pg. 39 line 9) that she wouldn't have heard the conversation outside because she never went outside the shop with the plaintiff. She was unable to say why the woman who had the still image was not available to give evidence for the court hearing. She confirmed that the employee in question had worked in the shop for a few years after the incident.

 

Evidence of Kathleen Gallagher

32.              I found the evidence of Kathleen Gallagher to be clearer and less confused. She accepts that she became cross and irate on the day and made clear that she was very unhappy about what had happened in the shop. Her account corroborated the plaintiff's account in a number of important respects. I accept her evidence that she and her sister-in-law were shocked when they were initially confronted in the shop, and that April was trying to tell the lady that the accusation was not true.

33.              I also accept her evidence that the allegation of shoplifting on St. Patrick's Day came a short time later, and that both she and April were trying to tell the staff members that that wasn't true.

34.              Kathleen said in evidence that one of the ladies in the shop said, "we have CCTV of you shoplifting on St Patrick's Day" and that she and April asked the lady to show them the CCTV. The evidence established that one of the staff members walked out of the shop and April followed her out.

35.              Importantly, Kathleen stated, without contradiction, that when this staff member who had the phone showed April the still image of CCTV, April said "it's not me". She corroborated the plaintiff's account that the lady then apologised to April and said, "no not you, her" (referring to Kathleen). Kathleen said that at that point the "whole thing switched on to [her]".

36.              When Kathleen said that it wasn't her in the photograph, the staff member with the phone shouted over her shoulder to another colleague in the shop "she is trying to say it's not her". Kathleen said that she took the phone and looked at it. She got angry and embarrassed, and there was a line of customers queuing up in the shop.

37.              She acknowledged that she approached a customer and said, "does this look like me?". She said she approached the counter, but that staff members would not serve either of them. She corroborated the plaintiff's account that the plaintiff left first because she was mortified, and that she left after that. Importantly, Kathleen said - again uncontradicted - that when she rang the shop the next day to complain, she let the staff member know that both she and the plaintiff had been accused in the wrong.

 

Conclusions from the evidence

38.              While much of the evidence was, as I have already said, contradictory and confused, it seems to me that a number of points have been clearly established in evidence to enable me to draw the following conclusions and make the following findings of fact:

(1)   The plaintiff and her sister-in-law Kathleen came into the shop together, picked up a bottle of wine and made their way towards the till.

(2)   Ms. Maguire did not know either of them, and had not seen them before. Ms. Maguire was in the middle of the shop floor working.

(3)   Ms. Maguire accepts that she uttered the words "management said you're barred". I find as a fact that this was said in the direction of both the plaintiff and her sister-in-law.

(4)   I find as a fact that the approach/accusation in question was not made or done discretely. It was done in full view of other customers in the centre of the shop where the plaintiff and her sister-in-law were approaching the till.

(5)   The approach/accusation was made within earshot of customers and not in a private area.

(6)   The direction given to the witness by management was inconsistent with the store's own stated policy of how to deal with suspected shoplifters. This was very unfair to Ms. Maguire, who was essentially left to carry the can.

(7)   Quite correctly, the witness acknowledged that the store's policy was not followed on the day. This was apparent in several ways.

(8)   The plaintiff and her sister-in-law were approached within the store.

(9)   Ms. Maguire was not directed by management to wait until the persons had left the shop.

(10)    There is no evidence that Ms. Maguire was directed to make the enquiry as discretely as possible.

(11)     There is no evidence Ms. Maguire was told to call the manager.

(12)     There was no evidence Ms. Maguire was told that if she wasn't one hundred percent sure, she was not to stop the customer.

(13)     Such remarks as were made to the plaintiff were not made quietly or in private. I accept the evidence of the plaintiff and Kathleen Gallagher that the utterances in question were shouted and that a scene was made (day 1 pg. 12 lines 2 - 19).

(14)     I accept the evidence of the plaintiff and Kathleen Gallagher that both were extremely embarrassed as a result of the whole episode (day 1 pg. 24 lines 10 - 18).

(15)     I accept the evidence that there were upwards of five or six people in the shop (day 1 pg. 12 lines 28 - 33 and day 1 pg. 40 lines 5 - 16).

39.              I find as a fact that other staff members at the till said to both the plaintiff and her sister-in-law "you were shoplifting on Patrick's Day" or words to that effect.

40.              Ms. Maguire, again to her credit, accepted that she heard this being said by a staff member (day 2, p.35, line 15). This tallies with the evidence of the plaintiff.

41.              I find as a fact that the plaintiff and her sister-in-law both believed they were being accused, not only from the initial confrontation, but also from later utterances by staff members.

42.              I accept the evidence of the plaintiff that a staff member behind the till said, "you are barred for shoplifting on Paddy's Day" and that she replied that she had been served only two days earlier.

43.              I also accept the plaintiff's evidence that she was shown a still photograph of CCTV by another staff member, and that it depicted a lady with long black hair. The plaintiff told the staff member "that's not me and it's not my sister-in-law" and the lady apologised and said, "I'm not speaking about you, I'm speaking about her".

44.              I am satisfied that this exchange with a staff member, who was not called in evidence to deny anything that was attributed to her, strongly supports the plaintiff's essential case that, as far as she was concerned, she had been accused of shoplifting.

 

Test for identification and the relevant legal principles

45.              The plaintiff submits that the principal issue on liability for the court is whether the plaintiff was reasonably identifiable within the terms of the allegedly defamatory statements uttered by the defendant's employees. Section 6(2) of the Defamation Act 2009 states:

"The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person) ...".

46.              The test as to whether the defamatory comments concern the plaintiff is an objective one. Even if the defendant's employees only intended that the words spoken related to Kathleen rather than the plaintiff, the issue for the court is to decide whether the persons present at the time the words were spoken identified the plaintiff with the words, on the balance of probabilities.

47.              I agree with the plaintiff's submission that the evidence of Ms. Maguire acknowledging that she couldn't tell the plaintiff from her sister-in-law, is of some relevance.

48.              The plaintiff relies on Cox and McCullough, Defamation: Law and Practice, 2^nd Ed., (Clarus Press, 2022) at para. 4.02. I needn't read out the relevant portion, but essentially, it is urged that what is relevant is an impressionistic reaction to the utterances/article on the part of the ordinary and reasonable bystander/reader. The plaintiff submits that the intention of the publisher/utterer is irrelevant in the context of identification, just as it is irrelevant in the context of meaning. What matters is simply that the ordinary bystander/reader would identify the plaintiff in the publication of the utterance.

49.              In my view, on a fair interpretation of the evidence, the words uttered by the various staff members were capable in law of referring to the plaintiff. Moreover, I am firmly of the view that the utterances in question, viewed objectively, did refer to the plaintiff. A number of the admitted exchanges were in fact directed at the plaintiff.

50.              The position is even more clearcut when one views the matter through the perspective of other customers who were present in the shop. I am satisfied that they would have seen the plaintiff and her sister-in-law come into the shop, select a bottle of wine and together approach the counter. They would have seen and heard the two ladies being addressed by a staff member. At the very least, they would have picked up that there was a problem, and that a serious issue had been taken. They would have heard a reference to somebody being barred by management and heard other staff members joining in. They would have heard reference(s) to shoplifting on St Patrick's Day. They would have heard things being said loudly in an accusatory fashion, in the direction of the two ladies. They would have heard the plaintiff and her sister-in-law protesting and later somebody mentioning there was CCTV footage available to justify a person being barred. They would have seen a staff member go outside, followed by the plaintiff. They would have seen a staff member showing the plaintiff a still image on her phone, and the plaintiff denying that she was the person in the photograph. Finally, they would have heard later exchanges with the plaintiff and her sister-in-law.

51.              I am entirely satisfied from the evidence that it was likely that other customers in the shop formed the impression that the plaintiff was being accused of being involved in shoplifting. I am satisfied, not just from what was said by the various employees, but also how it was said, that the plaintiff was identified as having been barred and/or as having been involved in shoplifting.

52.              In clear breach of the defendant's own policy, staff members were not directed to deal with what was a sensitive and plainly risky inquiry in a discreet or low-key fashion. Nor were staff told to wait until the ladies had left the shop. In clear breach of the policy, the plaintiff and her sister-in-law were approached within the shop and accusations were made.

53.              While I appreciate that the issue of shoplifting must be an ongoing challenge and indeed scourge for shop owners, there must be an onus on proprietors to act in a reasonable and prudent fashion. In Nolan v. Laurence Lounge [2022] 2 IR 596 MacGrath J. said the following (albeit in the context of the defence of qualified privilege):

"Ultimately, this case turns on the manner of the publication and its excessiveness. It is inevitable that in certain circumstances, the taxing of persons with theft, implied or express... will be overheard by others, particularly when the charge is made in a public place. The law makes allowances for this. It will always be a matter of reasonableness and degree as to whether the line has been overstepped in determining whether the publication is excessive such as may destroy any privilege that might otherwise exist." (emphasis added)

I am entirely satisfied from the evidence that no proper attempt was made to conduct these inquiries in an appropriate or reasonable fashion. This was not a situation that arose suddenly and without notice. Rather, the defendant's employees had apparently been tipped off in advance, erroneously as it turned out. Management can't have been surprised that customers in the shop would form the impression that the plaintiff and her sister-in-law were being jointly accused of wrongdoing.

54.              All of this occurred in circumstances where, as I said at the commencement of this judgment, it has been no part of the defendant's defence to suggest that either the plaintiff or her sister-in-law was in fact guilty of any such wrongful conduct.

55.              Nor is there any serious dispute but that the defendant's utterances carried the defamatory meanings suggested. While there was dispute as to what precisely was said, even the defendant's version of what was said carried implicit allegations of wrongdoing. These included imputations that the plaintiff had been guilty of shoplifting, was barred from the premises, was untrustworthy and was dishonest. The demeanour and manner in which the employees conducted themselves and communicated with the plaintiff, in the presence of other customers, are strongly suggestive of the defendant being reckless as to whether such imputations were conveyed.

56.              I am satisfied from the evidence that the plaintiff was embarrassed and humiliated by this ordeal, made worse by the fact that it occurred in her local shop.

57.              Having said all of the above, I have to take account of the fact that the publication of the defamatory words was quite limited in that there were no more than four or five customers in the shop at the time. Moreover, any award of damages must be reasonable and proportionate.

58.              It need hardly be said that the evidence heard in the High Court involved a different bank of evidence than that heard in the Circuit Court. The matter proceeded before me as a de novo appeal, meaning that witnesses gave their evidence afresh.

59.              In the circumstances, I propose to allow the appeal. I will give the parties an opportunity to consider my ruling on liability and explore whether agreement can be reached on quantum, in light of my ruling.

 

 

Micheál O'Higgins

 

Appearances:

For the Plaintiff/ Appellant: Aidan Doyle SC, instructed by O'Hanrahan D'Alton Solicitors

For the Defendant/ Respondent: Colm Condon SC, instructed by Dillon Eustace Solicitors