Friday 21 October 2016

Libel lottery to continue despite ruling on 'perverse' award

Our uncertain, unwieldy defamation regime serves neither plantiffs nor defendents well, writes Dearbhail McDonald

Published 25/10/2015 | 02:30

Our uncertain, unwieldy defamation regime serves neither plantiffs nor defendents well
Our uncertain, unwieldy defamation regime serves neither plantiffs nor defendents well

Such is the unpredictable nature of jury awards in Irish libel cases, those of us covering the courts occasionally hedge a nominal bet - €5 a head into a lottery pool - on what damages the jury might hand down.

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RTE Drivetime presenter Mary Wilson, when she was the broadcaster's legal correspondent, had an uncanny knack of reading juries and accurately guessing the award, which made me suspect she had mastered the arts of teleporting or telepathy.

Whatever about the verdict, I don't think even Mary Wilson could have predicted that a jury would award €900,000 to Martin McDonagh, a tax-evader and criminal whom the Sunday World had described in September 1999 - truthfully as it now turns out - as a drug-dealer.

The Court of Appeal last week set aside as "perverse" the jury's finding that Mr McDonagh, 51, of Cranmore Drive in Sligo, was not a drug-dealer.

Another jury will decide whether or not there was any truth to the paper's assertion that Mr McDonagh was also a loan shark in a retrial on that issue alone.

The jury heard evidence from a garda that Mr McDonagh had admitted he was a moneylender who charged 100pc interest on loans, evidence that was not effectively challenged during the trial.

In its ruling, the three-judge court found that, viewed objectively, the evidence in the case overwhelmingly pointed to the conclusion that Mr McDonagh was, indeed, a drug-dealer associated with a drugs seizure in Tubercurry in Sligo in August 1999.

What was remarkable about the trial was the procession of garda witnesses who testified in the case on behalf of the Sunday World and whose evidence was largely and in some cases entirely unchallenged by Mr McDonagh during the course of the trial.

Juries are, of course, free to dismiss the evidence of witnesses.

It is jurors - after all, the arbiters of fact - whose job it is to bring their common sense to bear on issues such as the demeanour or credibility of a witness.

And it is, as the old aphorism goes, only in the closed quarters of the jury room that juries come into their own.

This is, in fact, one of the strengths of our jury system and why I'm not quite there yet on the abolition of juries in the handful of civil actions that they are still required for.

I think it's healthy for justice for juries, who are meant to reach a distilled community verdict on our behalf, to buck a consensus. But it is not healthy for any party in a libel action if juries dismiss cogent evidence that is for the most part unchallenged by a plaintiff. The court found, for example, that there was effectively no cross-examination of garda witnesses in respect of statements Mr McDonagh made to gardai following his arrest in connection with the drugs seizure.

This matters in a system where a plaintiff can, if recent awards are anything to go by, potentially secure damages of up to €10m.

With such seemingly limitless possibilities, and mindful that awards to paraplegics or quadriplegics for 'pain and suffering' are capped at more or less €500,000, maybe Socrates was right when he urged us to regard our good names as the richest jewel we can possibly be possessed of.

The Sunday World verdict would have been set aside in any event as the jury awarded €900,000 to Mr McDonagh without answering an essential question it was legally obliged to answer on the issue paper.

The Court of Appeal said it would have allowed the Sunday World's appeal against the entirety of the jury verdict on that basis alone.

Notwithstanding reforms in 2009, our uncertain, unwieldy defamation regime serves neither plaintiffs nor defendants well.

And as the law hasn't even begun to get its head around the rapidly changing social media environment, it's likely the libel lottery will continue for some time to come.

Sunday Independent

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