Bad News for Media Victims

Readers may recall the case of O'Connell v Irish Times in which a mother sued the newspaper for distress caused by allegedly negligent reporting of the circumstances of her son's death. The Plaintiff succeeded in the Circuit Court, but the newspaper appealed to the High Court. (Circuit Court decisions have no formal precedential authority).

The appeal was finally reached recently.

Unfortunately, it was settled before the Court could make a decision. The details are not in the public domain but I gather that, in the final result, the Plaintiff got something from the proceedings, but unfortunately not the satisfaction of improving the legal position of media victims.

Judicial Heavyweight to hear Irish Times appeal

Looking at the called-over list for appeals from Cork Circuit Court (postponed from March), I was startled to see that the two judges assigned to the list are the Limerick duo of Murray C.J. (remember him ?) and Johnson P.. It is a little unusual (only a little) for a member of the Supreme Court to sit as a High Court judge, but I don't remember the Chief Justice doing so before. It is somewhat intimidating for practitioners to have him paired with the President of the High Court.

No doubt, it is completely coincidental that our old friend the negligent publication case is listed (at no.16)for hearing, having been adjourned from the last appeal sessions, which - I now recall - also featured a Supreme Court judge.

Update on Tuesday, May 6, 2008 at 02:11PM by Fergus O'Rourke

I have it on the best authority that the "negligent publication" case cannot proceed. Due to the postponement of the appeal sessions from March to June, a crucial witness has become unavailable. (Circuit Court appeals proceed by a full re-hearing).

Negligent Publication (update)

Readers may remember the case of O'Connell v. The Irish Times, reported by me earlier this year.In brief, the newspaper was ordered to pay damages because of negligently reporting, allegedly, that a dead man had been a drug-dealer, thus causing his mother psychological injury.

As I anticipated, the decision was appealed to the High Court, and the appeal was listed for hearing this week as you will, of course already have read about here but has been adjourned to the next Appeal sessions in March 2008.

Interestingly perhaps, the delay is due (so the court was told this morning in my own presence)to difficulties in deciphering transcripts of the original criminal trial, the report of which was allegedly negligent.

The Monica Leech Case

Ms Leech is a public relations consultant based in Waterford, who got some valuable Government work from departments headed by local T.D., Martin Cullen. On Joe Duffy's phone-in programme, a caller casually (but in explicit terms) suggested that she might have got the work in return for sexual favours. RTE ended up paying Ms Leech EUR 250k for that in an out-of-court settlement.

The day after the broadcast, Gavin O'Reilly's Irish Independent could not resist reporting the incident, including in its report an unexpurgated verbatim repetition of the offending comment. Ms Leech, a lifetime Indo reader herself, sued for libel.

Somewhat surprisingly perhaps, she lost. The jury decided that the newspaper report had not been defamatory, which indeed, taken as a whole, it probably was not, because the newspaper made it very clear that it was a disgraceful and unfounded allegation. (Defamation consists of uttering a statement about a person which tends to lower the reputation of the subject in the eyes of right-thinking people).

All the same, I cannot help feeling that it is most regrettable that the Indo got away with this, especially as RTE did not. After all, as was pointed out during the trial, the newspaper's article was in more permanent form than the broadcast. Also, the broadcaster did not choose to publish the offensive material, whereas the newspaper did.

One other way that Mrs Leech might have sought (it is too late now) to recover damages for the wrong done to her by her favourite newspaper was that reported by me here last April.

Newspaper to pay for Upsetting Murdered Man's Mother

Cork Circuit Court saw a rather significant case decided in a very significant way on Thursday, April 19 2007. No journalist was present, which was odd given that the defendant was The Irish Times.

The plaintiff Mrs O'Connell complained that the newspaper had reported that her murdered son had been described by police as a drug dealer, that this was false, had been negligently published and that she had suffered psychological damage as a result, for which she sought compensation.

The newspaper pleaded that it owed no duty of care in these circumstances. Indeed, the media's special role in a democratic society meant that there were very limited circumstances in which it could be liable for anything published, and that these circumstances were confined to the defamation context. There was no actionable defamation here as the alleged victim of it was deceased.

The court (per Judge Con Murphy) decided that the plaintiff had established her case. There was a duty of care, no reasonable care was taken, resulting in substantial and predictable injury. He awarded damages of EUR 15,000.

The decision, which apparently has no precedent in the common-law world, seems quite reasonable to me. It will, I understand from reliable sources, be appealed to the High Court, and all right-thinking people will hope that that court will confirm the decision and thereby give it binding status.

Distinguished author and adviser to Government, Michael McGrath, instructed by Vincent Toher and Company, appeared for the plaintiff. John Lucey, media law expert, was for the newspaper, instructed by Hayes & Company.

I will speak at another time of my pivotal role in bringing this result about. Mr McGrath and I regularly discuss media law, inter multa alia. For regular readers, I hardly need to add that one of the leitmotivs of my outpourings on that area of jurisprudence is my advocacy of stronger media laws. No doubt due to the extreme busy-ness of my life generally, I do not specifically recall this case coming up in those discussions, but I am confident that it must have done.

It is thus rather peculiar that Mr McGrath is having some difficulty in recalling my constant encouragement of his persistence with this ground-breaking case: perhaps he is not as self-aware as I am !