by Joe O'Malley , Michael Kelly July-23-2021
Michael Reilly brought a defamation action against the publishers of the Kilkenny People, Iconic Newspapers Limited in relation to an article reporting on a District Court case. Mr Reilly maintained that the article was defamatory of him where it referred to a Michael Reilly of Ballycullen, Mullinahone, Tipperary being banned for failing to have insurance. Mr O’Reilly claimed he was the only Michael O’Reilly with that address and he suffered reputational damage as a result.
At the close of evidence Counsel for Iconic brought an application to withdraw the case from the jury on the basis that no reasonably minded jury, properly charged, could find that the article, the subject matter of the proceedings, is anything other than a fair and accurate report of the proceedings in Kilkenny District Court on 15 February, 2016 and so attracted absolute privilege.
Law
Section 17(2)(i) states the following in relation to privilege:-
“….. it shall be a defence to a defamation action for the Defendant to prove that the statement enters in respect of which the action was brought was - ……….
(i) A fair and accurate report of proceedings publicly heard before, or decision made public by, any Court - ………”.
Therefore, for absolute privilege to apply the court report, it must (1) be a fair and accurate report and (2) relate to proceedings publicly heard before, or decision made public by, any Court.
Revelant Facts
The Court found the following undisputed facts. On 30 June 2015 the Gardai stopped a vehicle in Kilkenny, the driver of the vehicle gave his name as Michael Reilly of Ballycullen, Mullinahone, Tipperary and that when the vehicle registration number was checked it was registered to Michael Reilly of Ballycullen, Mullinahone, Tipperary. A summons that issued against the said Michael Reilly was served by a local Gardai on Mr Reilly. The District Court minute book recorded the Accused’s address as, Ballycullen, Mullinahone, Tipperary and certified copies of the Court Orders similarly record the addresses Ballycullen, Mullinahone, Tipperary.
Case Law On Absolute Privilege
In making its decision the Court relied on the case of Philpott V Irish Examiner [2016] 3 IR 565 and the decision of Mr Justice Barrett, where he set out the requisite principles for whether a report is “fair and accurate”, he stated
“it is perfectly possible, reasonable and lawful for a court reporter to rely solely on the written judgment of a court as the basis for formulating a court report that later appears in print, “on-air” or on-line, and for that report to be ‘fair and accurate”
The Court in applying this principle found that it was undoubtedly permissible for the Court reporter to rely on court records such as the court minute book, which the court reporter checked prior to publishing the article, and the Court rejected entirely the proposition that there was some kind of investigative burden on the reporter or the newspaper to include additional details such as date of birth or to carry out background checks before publishing the court report.
The Court noted that the facts are matters solely for a jury to decide while issues of law, such as questions of privilege, rest solely with the trial Judge. The Court found that the reporting of what happened was fully accurate and accorded with the decision recorded in the court minute book and “In a nutshell, “the report mirrors the decision of the Court”.” In those circumstances the Court was satisfied that the article attracted absolute privilege and there was no evidence upon which a jury properly charged could reasonably find that the report is not fair and accurate. Therefore, the case was withdrawn from the jury and dismissed.
While not relevant to the decision made, the Court noted that it was unfortunate that the Plaintiff failed to avail of an offer by Icon to publish a clarification to the effect that he was not the Michael Reilly referred to in the article and so resolve the matter at the earliest opportunity. This re-affirms that any Plaintiff in a legal action, including a defamation action, is under an obligation to mitigate their loss and they will face disapproval from the Court if they choose to refuse mitigation measures that are offered by a Defendant.
If you have any questions about this topic please contact Joe O’Malley jomalley@hayes-solicitors.ie or Michael Kelly mjkelly@hayes-solicitors.ie.
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About the Authors
Joe O'Malley
Joe is Managing Partner and Head of the Commercial Litigation & Dispute Resolution team at Hayes solicitors. He handles a wide variety of commercial disputes involving high value claims, complex issues and voluminous data for financial institutions and corporate clients.
Michael Kelly
Michael is an senior associate solicitor in the Commercial Litigation & Dispute Resolution team at Hayes. He has experience advising commercial clients with respect to a wide variety of issues, in particular restructuring and insolvency cases. He regularly acts for receivers, liquidators and examiners in High Court and Commercial Court proceedings.