Trial Arrangements

 

Cases

 

Bradley & Ors (p/a Malcomson Law Solicitors) -v- Maher

[2009] IEHC 389 (31 July 2009)

 

 

 

 

Clarke J

3. The Law

3.1 The starting point has to be the provisions of s. 94 of the Courts of Justice Act, 1924, which preserved, in the Courts of Saorstát Éireann, the right to trial by jury in any case where a right to trial by jury in civil proceedings had previously existed. Section 94 stated as follows:-

 

 

“94. —Nothing contained in this Act shall take away or prejudice the right of any party to any action in the High Court or the Circuit Court (not being an action for a liquidated sum, or an action for the enforcement, or for damages for the breach of a contract) to have questions of fact tried by a jury in such cases as he might heretofore of right have so required in the Supreme Court of Judicature in Ireland, and with like directions as to law and evidence, but no party to an action in the High Court or the Circuit Court for a liquidated sum, or an action for the enforcement or for damages for the breach of a contract or in an action for the recovery of land shall be entitled to a jury unless the judge shall consider a jury to be necessary or desirable for the proper trial of the action, and shall of his own motion or on the application of any party so order. Subject to all existing enactments limiting regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every civil action, and of every civil question and issue, tried by a jury in the High Court or the Circuit Court shall follow the event, unless, upon application made, the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by the appellate tribunal.”

 

There is no doubt but that a right to trial by jury in defamation proceedings existed as of that time and was, therefore, continued in force by reason of that Act.

3.2 It seems equally clear that any entitlement to trial by jury in defamation proceedings is purely statutory, and does not derive from the Constitution. For example, defamation proceedings in the Circuit Court do not involve a jury. It has never been suggested that there is any constitutional infirmity in that arrangement.

 

3.3 It is, of course, the case that one significant aspect of the entitlement to trial by jury in civil proceedings was removed by virtue of s. 1 of the Courts Act 1988, The relevant provision is as follows:-

 

 

“1.—(1) Notwithstanding section 94 of the Courts of Justice Act, 1924 or any other provision made by or under statute, or any rule of law, an action in the High Court—

(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),

 

(b) under section 48 of the Civil Liability Act, 1961 , or

 

(c) under section 18 (inserted by the Air Navigation and Transport Act, 1965 ) of the Air Navigation and Transport Act, 1936 ,

 

 

or a question of fact or an issue arising in such an action, shall not be tried with a jury.

 

(2) Subsection (1) of this section also applies in relation to—

(a) an action in which damages are claimed both in respect of personal injuries to a person caused as specified in subsection (1) (a), or the death of a person, and in respect of another matter, and

 

(b) an action in which—

 

(i) the damages claimed consist only of damages in respect of a matter other than personal injuries to, or the death of, a person, and

 

(ii) the claim arises directly or indirectly from an act or omission that has also resulted in personal injuries to, or the death of, a person,

 

 

and in relation to a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection.

 

(3) Subsection (1) of this section does not apply in relation to—

(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,

 

(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or

 

(c) a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespass to the person or both, as the case may be, in respect of the act or omission concerned.”

 

 

3.4 As is clear, therefore, a right to trial by jury in personal injury actions as defined in that provision was removed and is no longer available, except in claims for false imprisonment and trespass to the person, as set out in s. 1(3) of the Courts Act 1988.

3.5 In that context, the Supreme Court had to consider in Sheridan v. Kelly [2006] 1 IR 314, a situation which arises where multiple claims are made, some but not all of which would, in the ordinary way, attract an entitlement to a jury trial. In that case the Supreme Court came to the view s. 1(3) allowed for a trial by jury in a claim for damages for personal injuries caused by negligence, or other means, provided damages were claimed in respect of either false imprisonment or intentional trespass to the person. However the two causes of action must be linked by a claim that the damage arose in respect of the same act or omission. In Sheridan, the Supreme Court found that all of the plaintiff’s allegations, being a claim for personal injuries for negligence and for trespass to the person, could be traced back to the core allegation of the plaintiff’s claim. At page 319, Fennelly J. stated as follows:-

 

 

“(T)he subsection allows a plaintiff, in certain cases, and provided he claims damages as a result of one of the two specified cause of action, namely “false imprisonment or intentional trespass to a person”, or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires, however, that there two causes of action be linked by a claim that the damages arose “in respect of the same act or omission”…The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical.”

 

3.6 However, it seems clear that an important aspect of the consideration of the Supreme Court in Sheridan was the proper interpretation and application of s. 1 (3) of the Courts Act 1988.

3.7 More recently Dunne J. had occasion to consider an analogous issue in Kerwick v. Sunday Newspapers Limited Trading As Sunday World, (Unreported, High Court, Dunne J., 10th July, 2009). In that case the plaintiff concerned brought proceedings for defamation, a breach of the right to privacy, and negligent infliction of emotional distress. On the facts of the case concerned, Dunne J. determined that, notwithstanding the fact that, in the ordinary way, the defamation claim brought by the plaintiff concerned would have been tried by a jury, nonetheless, in all the circumstances, the interests of justice required that there be a single trial of all issues and that such a trial could not be before a jury. Dunne J outlined the difficulties of separating the claims into separate proceedings as follows:-

 

 

“Imagine that this case was set down for trial without a jury and that the plaintiff made an application to have the trial of two of the causes of action heard at the same time and the trial of the third cause of action held at a later time. Imagine that there would be two separate assessments made in respect of damages. There would be a duplication of evidence, the case would take longer, the costs would be greater and it is arguable that there could be an overlap in respect of the damages that might be awarded. It is difficult to see how such an approach could be permissible in any circumstances.”

 

3.8 Against that background it seems to me that the following general principles seem to apply. In the ordinary way, a plaintiff or defendant is entitled to a jury trial in this Court in defamation proceedings. However, that entitlement is not absolute. Where a single set of proceedings involve more than one cause of action, the court has to exercise a discretion as to the appropriate way in which all issues in the case can be disposed of. That discretion arises even in cases where no question of a right to trial by jury exists. For example, the question of whether all issues in a single case which is to be tried by a judge alone should be determined at a single unitary hearing, or in two or more separate hearings, is a matter over which the court retains a discretion which should be exercised, as should all judicial discretion, on a principled basis. For discussion of the principles to be applied in such cases see Cork Plastics Manufacturing & Ors v. Ineos Compound UK Ltd & Ors [2008] IEHC 93.

3.9 The available options, at the level of principle, in a case where defamation is but one of the issues arising seem to me to be the following:-

 

 

1. A single unitary trial in which all issues are determined at a single hearing. It seems clear that if that is the option which justice demands then it necessarily follows that such a trial will not be a trial by jury as it would be inappropriate to extend trial by jury to issues which are not properly tried, in civil proceedings, by a judge sitting with a jury. Obviously where one of the claims made is a personal injury claim then the application of s. 1(3) of the Courts Act 1988, would need to be considered.
2. Two fully separate trials. In such circumstances, the court has a discretion to direct that there should be a separate trial before a jury of the defamation aspect of the proceedings with a further trial of all other issues before a judge sitting alone. Clearly whether such a course of action is satisfactory will be highly dependent on the inter connection between the issues likely to arise at the respective hearings. Factors such as whether or not there is likely to be a significant waste of court time and parties expense in the duplication of evidence where the facts relevant to both matters are the same or similar will be an important factor. Likewise, the necessity to ensure consistency in relation to all findings of fact must be taken into account and may give rise to difficulties in circumstances where a jury will simply deliver a verdict on the basis of general questions asked of the jury concerned, and without giving detailed reasons or detailed findings of fact. The possibility of a judge being placed in the difficult position of having to assess the same facts as a jury had previously addressed with an obligation to give proper recognition to the findings of the jury, but at the same time being unaware of the precise factual basis on which the jury came to its conclusion needs to be weighed significantly in the balance. In addition, regard should be had to the circumstances in which the dispute between the parties as to whether there should be a jury trial has arisen. For example, note should be taken of the fact that it is normally a plaintiff who decides the causes of action which are to arise in a single set of proceedings (although, of course, as here, a defendant may add to those causes of action by reason of raising issues in a counterclaim). Care should be exercised to ensure that a plaintiff should not be allowed to exclude the possibility of a jury trial simply by adding some form of relief to a claim which is substantially one in defamation. It is, of course, the case that other factors may loom to a greater or lesser extent as important matters to be weighed in the balance on the facts of any individual case.

 

1. A hybrid trial. Order 36, rule 7 of the Rules of the Superior Courts provides as follows:-

 

“The court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or party of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.”

 

It is clear from that order that the court has an entitlement to direct that there be a trial of certain issues before a jury with the same trial judge continuing on to deal with other issues (not appropriate for jury trial) after the jury has reached its conclusions. It follows that, in such cases, the evidence heard before a jury will also form part of the evidence which the judge will be entitled to consider when dealing with any other issues which remain for decision by the judge sitting alone. Whether such a form of hearing is satisfactory (and that is the test for the rule speaks of it appearing “desirable”)will again depend on the circumstances of the case. The extent, for example, that it might be necessary to call the same witnesses again will be important. Such witnesses may have to be called again because lines of cross examination that might not have been relevant to the jury trial (and would therefore have been inappropriate to pursue before the jury) might nonetheless be appropriate in respect of issues which the judge had to try. All proper weight would need to be attached to any complications of that variety which might arise. Likewise, dependent on the facts of the case under consideration, the difficulties which the judge might encounter in having to approach the issues which were for the judge to determine on a consistent basis with the findings of the jury, but without knowledge of the precise basis on which the jury came to its conclusions, would arise under this heading as well. Furthermore, there is always the possibility that other individual aspects of any case under consideration might prove important to weigh in the balance under this heading as well.

 

 

3.10 It is clear, therefore, that the court retains a discretion as to which form of the conduct of the trial or trials necessary to resolve all issues between the parties is appropriate in all the circumstances of the case. I have sought to identify the principal factors that might be likely to influence a court’s decision as to where the justice of the case lies. However, it seems almost certain that each case will depend, to a significant extent, on its own facts.

3.11 In the light of those general principles, I propose approaching the facts of this case.

 

4. Application to the facts of this case

4.1 There is likely, on the facts of this case, to be a significant overlap between the factual matters that would need to be addressed in the defamation aspect of these proceedings, on the one hand, and the other aspects of Malcomson Law’s claim together with Mr Maher’s counterclaim, on the other hand. It is clear, therefore, that either a separate trial of the defamation aspects of the proceedings from those other aspects of the claim and counterclaim or a hybrid trial of the type which I have sought to describe, would involve at least many of the same facts having to be considered in both parts of any trial. In those circumstances an entirely separate trial of the non-jury issues which arise in these proceedings would seem to me to be highly unsatisfactory. There would be a considerable waste of court time and parties expense in having to go through the same evidence again. There would also be the risk of the judge dealing with the non-jury aspects of the case being placed in the sort of difficult position which I have sought to identify. In all the circumstances, it does not seem to me that the justice of the case could possibly lead to the view that two entirely separate trials could be satisfactory.

 

4.2 The question of a hybrid trial is somewhat more finely balanced. The trial judge who presided over the jury trial would, of course, have the opportunity to hear the evidence which the jury had to consider, and that evidence would form part of the evidence which the judge would need to take into account in determining the issues which arose at the non-jury part of the trial. However, it seems to me to remain the case that there would be a significant risk that some of that evidence would need to be revisited and subjected to different forms of examination (both in chief and as to cross examination), in order to properly deal with the issues which would arise in the non-jury aspect of the case. Likewise, the potential difficulties for the judge dealing with the non-jury aspect of the case in interpreting the precise factual basis on which the jury had come to its conclusions would remain and could well be important to the judge’s decision on the aspects of the case which were for the judge to decide.

 

4.3 On balance, I have come to the view that a hybrid trial would not be in the interests of justice in this case. Neither am I satisfied that this is a case where there is anything inappropriate in the joinder of the defamation and picketing aspects of the case so that is could be said that their joinder was device to deprive Mr. Maher from an entitlement to a jury trial. Rather it is obvious that both aspects of the claim are real, connected and proper to be decided in one set of proceedings.

 

4.4 I also gave consideration as to whether it was appropriate to have regard to the fact that Mr. Maher is a litigant in person in coming to a view in relation to any of the questions which I have addressed. It is, of course, the case that litigants in person frequently experience difficulties in presenting proceedings before the courts because they are, for entirely understandable reasons, often unfamiliar with procedural or evidential law. In a trial before a judge sitting alone, it is normally possible to get round any such difficulties even though same may well lead to the proceedings taking a lot longer than might otherwise be the case. Such difficulties have the potential to come into particularly sharp relief in a civil jury action. Even when parties in such actions are represented by experienced counsel, it is not unknown for a jury to have to be discharged because of some turn in the case which, in the view of the trial judge, has given rise to prejudice which could not be remedied by an appropriate charge to the jury concerned. The risk of such an occurrence must be very great indeed in a case where one of the parties is unrepresented.

 

4.5 However, it does not seem to me that this is an appropriate factor that could be properly taken into account in deciding whether there should be a jury trial. A litigant in person has the same right to jury trial as any other party. Such litigants must, of course, be aware (and should, in my view, be warned in advance by the trial judge) of the consequences of matters being said to the jury which might cause prejudice to the jury such as comments being made for which there was no evidence. The fact that the jury might have to be discharged in such circumstances and that the costs of the aborted trial might well have to be visited on the party who had caused the jury to be discharged, would also need to be emphasised. However, it seems to me that such a consequence (i.e. the award of costs for any aborted trial) is the proper means of dealing with any such problem, at least in respect of an initial occurrence of such a problem. I would not, however, rule out the possibility that a litigant in person who proved unable, despite being given the opportunity on all appropriate guidance from the bench, to conduct a jury trial in a proper fashion might lose any such entitlement to a jury trial. A party is not entitled to a infinite number of chances to get it right. However, it seems to me that a party, such as Mr. Maher, would, ordinarily, be entitled, if all other factors pointed in that direction, to be given the opportunity to conduct a jury trial himself. I did not, therefore, take into account, in reaching my decision, the fact that Mr. Maher is a litigant in person.

 

5. Conclusions

5.1 For the reasons which I have sought to analyse, I am not satisfied that the balance of justice in this case would favour two separate trials of the jury and non-jury aspects of the issues which arise in these proceedings. Likewise, I am not satisfied that the balance of justice would favour a hybrid trial.

 

5.2 In those circumstances, I am driven to the conclusion that the only fair and just way of resolving all of the issues between these parties is by a single trial, and for the reasons which I have already set out, such a trial must be a trial without a jury. In those circumstances, it does not seem to me to be appropriate to set aside the notice of trial without a jury which has already been served.

 

 

 

 Browne v. Tribune Newspapers plc t/a The Sunday Tribune

[2000] IESC 74; [2001] 1 IR 521 (24th November, 2000) Keane CJ

 

 

The Rules of the Superior Courts

 

27. Order 36, Rule 36 of the Rules of the Superior Courts provides that

 

 

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(15)

 

“In actions for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of the defendant shall not be entitled on the trial to give evidence in chief with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff without the leave of the judge, unless seven days at least before the trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence.”

 

28. Since that rule is applicable only where justification has not been pleaded, it might be thought that it has no relevance where, as here, justification was pleaded. That, however, is not necessarily the case. In Plato Films Limited .v. Speidel [1961] AC 1090, Lord Denning commented as follows on the corresponding English rule:

 

 

“In the year following Scott . v. Sampson (8 QBD 49), Order 361, Rule 37, was made. It was confined to cases where justification is not pleaded. This looks as if someone thought that the evidence receivable in mitigation of damages was different according as justification was pleaded or not. just as Chambre J did in 1811. But this is not true. There is no difference in principle between the

 

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(16)

 

two cases. I prefer, however, to think that the makers of the rule thought that, when justification was pleaded as it was in Scott .v. Sampson that case made it clear that, if the defendant intended to give evidence in mitigation of damages, he had to include the material facts in his defence. See what Matthew J said and Cave J. Then in order to cover cases where justification was not pleaded, Order 36, Rule 37, was passed so as to require the defendant to give particulars.

 

Since, however, neither Order 36, Rule 36 nor any of the cases dealing with this matter were referred to in the course of the arguments in this court or at any stage in the High Court, it is unnecessary to consider this aspect any further.

 

The relevance of the cross-examination

 

The cross-examination as to actions for defamation brought by the plaintiff in the past in respect of other unrelated publications was clearly not relevant to the issues of justification, fair comment, the meaning to be attributed to the words complained of or the identification of the plaintiff. They could, accordingly, be relevant, if at all, solely to the issue of damages.

 

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(17)

 

However, permitting cross-examination of this nature gives rise to an immediate difficulty. If, for example, one or more newspapers had published in the past a truly monstrous falsehood concerning the plaintiff – that he regularly accepted bribes, for example, in return for suppressing criminal prosecutions -the fact that he recovered substantial damages from the newspapers concerned would be unlikely to create a damaging impression in the mind of the jury that the plaintiff was someone who was, so to speak, in the business of exploiting every available opportunity to him of recovering damages from newspapers. It would follow that, were such cross-examination permissible, the court would have to permit the plaintiff to give details as to the precise nature of the defamation on the previous occasion, the course the proceedings took, whether any apology was offered, and the nature of the trial. In addition, matters such as the circulation of the offending publication would all have to be explored. The defendants would, presumably, be entitled to call rebutting evidence and the court would find itself in the position of having to conduct a virtual trial within a trial on this issue and this would also apply in respect of each individual defamation action which the plaintiff admitted to having instituted. It would seem remarkable that a court would be obliged to try collateral issues of this nature simply in order to determine whether, in the event of the plea of justification failing, the plaintiffs damages should be reduced because of his readiness to bring defamation proceedings in the past. It is true that no such

 

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(18)

 

wide-ranging enquiries were pursued in this case, as counsel for the plaintiff preferred to adopt the posture that the questioning was in any event irrelevant and inadmissible but there cannot be any serious doubt as to the entitlement of the plaintiff to require such an enquiry to be undertaken where a defendant seeks to elicit such evidence in cross-examination. In the absence of any authority on the matter, I would have thought that the objection by counsel for the plaintiff should have been upheld by the trial judge.

 

Evidence in Mitigation of Damages in Defamation Actions

 

The authorities, in my view, clearly support the view that cross-examination on this topic is inadmissible. The law in Ireland is stated as follows in the Consultation Paper on the Civil Law of Defamation published in 1991 by the Law Reform Commission:

 

“The defendant may lead evidence in mitigation of damages as follows:

 

(a) Evidence that the plaintiff had a general bad reputation prior to the publication of the defamation.

 

(b) Under s. 26 of the Defamation Act [1961] evidence that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in

 

 

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(19)

 

respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.

 

(c) Under s. 17 of the Defamation Act [1961], evidence that the defendant made or offered an apology to the plaintiff before the commencement of the action or as soon afterward as he had an opportunity of doing so, in case the action was commenced before there was an opportunity for making or offering such apology.

 

(d) Evidence of retractions or corrections by the defendant, or the offer of a right of reply.

 

(e) Evidence of the conduct of the plaintiff.

 

(f) Evidence of the circulation of the libel.

 

(g) Repetition and disclosure of source.

 

Two comments should be made on this passage. First, the statement of the law is in broadly similar terms to that in Gatley on Libel and Slander referred to earlier in this judgment, although some categories are specified in Gatley which are in the Commission’s list and vice versa . Secondly, it seems to me that there is no distinction in principle between evidence in mitigation of

 

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(20)

 

damages led by the defendant and evidence elicited by him in cross-examination.

 

It is clear that evidence that the plaintiff has instituted proceedings in respect of unrelated publications in the past does not come within any of the categories set out either in Gatley on Libel and Slander or in the passage cited from the Consultation Paper published by the Law Reform Commission. The exception permitted under the heading “Evidence of the Conduct of the Plaintiff” is clearly confined in general to activities connected to the publication of the libel of which the plaintiff complains. It may also encompass a libel or slander on the defendant published by the plaintiff himself. The evidence sought to be elicited by the disputed line of cross-examination in the present case does not, accordingly, fall within that exception.

 

It may be asked why the law should be concerned in actions for defamation to ensure that only specified categories of evidence are admitted in mitigation of damages. However, it is to be borne in mind that in this, as in so many other respects, such actions are sui generis . The estimation in monetary terms of the damage to a person’s reputation is very different from the assessment carried out by courts in personal injuries actions. This is most

 

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(21)

 

graphically illustrated in the decisions concerning the admissibility of evidence as to the plaintiff’s bad reputation.

 

Clearly, it would be wrong in principle for a jury to be asked to assess damages in respect of an admittedly untrue statement that the plaintiff had stolen money from his employer on a particular occasion without being informed that he had stolen money from a number of other employers in the past. As it has been pithily put in a number of cases, the plaintiff should not be allowed to recover damages for injury to a reputation that is not his. It was held in England in the leading case of Scott .v. Sampson (1882) 8 QBD 491 that general evidence of a bad reputation was accordingly admissible in mitigation of damages, but that evidence of particular facts tending to show the character and disposition of the plaintiff was not. The law was thus stated by Cave J. in Scott .v. Sampson :

 

“As to … evidence of facts and circumstances tending to show the disposition of the plaintiff both principle and authority seem equally against its admission. At the most it tends to prove not that the plaintiff has not, but that he ought not to have, a good reputation and to admit evidence of this kind is in effect as it was said in Jones .v. Stephen 11 Price 235, to throw on the plaintiff the difficulty of showing a uniform propriety of conduct during his

 

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(22)

 

whole life. It would give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of”.

 

(It may be noted in passing that it was also held in that case and in subsequent cases that evidence of rumours and suspicions to the same effect as the defamatory matter complained were also not admissible.)

 

29. However, it was acknowledged in Plato Films Limited .v. Speidel , where the law lords declined an invitation to review the decision in Scott .v. Sampson that it was sometimes difficult to draw the borderline between evidence of general bad reputation and evidence of specific misconduct which has led to it. Moreover, in Goody .v. Odhams Press [1967] 1 QB 333, it was held that evidence of previous convictions for certain offences was in a different category from evidence of specified acts of misconduct which had not resulted in convictions.

 

 

30. It should also be said that the law in Ireland on this difficult topic cannot be regarded as settled beyond doubt. In Kavanagh .v. The Leader , (decided by the former Supreme Court on the 4th March 1955 and still astonishingly

 

 

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(23)

 

unreported) Scott .v. Sampson was accepted as settled law. However, in an older Irish case of Bolton .v. O’Brien (1885) 16 LR (Ir.) 97, 483 specific instances of misconduct were admitted with a view to reducing damages. It remains to be noted that the Law Reform Commission in their Report on the Civil Law of Defamation (1991) recommended that the law should be clarified by permitting the defendant to introduce in mitigation of damages any matter, general or particular, relevant at the date of the trial to that aspect of the plaintiffs reputation with which the defamation was concerned. That was also in accord with the change in the law recommended by the Faulks Committee in England.

 

31. I have considered at some length the law on this topic because, while there may indeed be cases where a rigid application of the rule in Scott .v. Sampson might lead to the exclusion of a specific act of misconduct which would be plainly relevant in establishing that the plaintiff was claiming damages to a reputation which he did not have, the reasons which have led the courts both here and in England to lean against the introduction of evidence as to specific acts of misconduct in mitigation of damages would also point to the exclusion of evidence that the plaintiff has instituted in the past proceedings for defamation arising out of other publications relating to wholly different

 

 

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(24)

 

matters. As Lord Morris of Borth-y-Gest put it in Plato Films Limited .v. Speidel : –

 

“If in a quest to discover or to assess the true character and disposition of a plaintiff defendant could assert and seek to prove certain deeds which were discreditable to the plaintiff the latter could hardly be denied the right to counterbalance them by asserting and seeking to prove deeds which redounded to his credit. The limits of roving enquiry would be hard to control. There would be trials within a trial. The last stage of a trial would be far removed from the first.”

 

32. This must apply with even greater force where the acts of which evidence is sought to be given, i.e. the institution of other proceedings for defamation, are not of themselves discreditable. The defendants, as I have said, have sought to meet that difficulty in the present case by claiming that the evidence was being introduced, not in relation to the reputation of the plaintiff, but to the injury and distress which the publication had caused to him personally.

 

 

33. That, of course, is undoubtedly one of the matters which the jury is entitled to take into account in assessing the damages in an action for defamation, But it would be anomalous, in my view, if a defendant were to be,

 

 

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(25)

 

in general, precluded from introducing evidence as to specific acts of misconduct with a view to mitigating the damages in respect of the injury to the plaintiffs reputation, but permitted, in a case such as the present, to introduce evidence of specific acts, whether amounting to misconduct or not, with a view to mitigating the damages payable in respect of the injury to the plaintiff’s feelings.

 

34. That conclusion seems to me to be strongly reinforced by the provisions of s. 26 of the Defamation Act 1961. Under that provision (which is in identical terms to s. 12 of the English Defamation Act 1952).

 

 

“In any action for libel or slander the defendant may give in evidence in mitigation of damage that the plaint if has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.”

 

35. The reason for this provision is obvious. It would be clearly wrong that a jury should be required to assess damages for a libellous publication without being aware that the plaintiff had already been compensate in respect of virtually the same libel, although appearing in another publication. However, if

 

 

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(26)

 

it were permissible for the defendants to adduce evidence of the institution by the plaintiff of defamation proceedings in respect of wholly unrelated libels, which would be of significantly less relevance, then a fortiori he should have been entitled, even in the absence of any statutory provision, to give evidence of damages recovered in proceedings for effectively the same libel or slander. If he were so entitled, as is claimed on behalf of the defendants in the present case, the provisions of s. 26 would seem to be entirely superfluous.

 

36. It is, of course, possible for either the draftsman of legislation or parliament in its collective wisdom to legislate under a misapprehension as to the state of the existing law. But it seems to me that the provision in question is a clear indication that the generally accepted view of the law at the time of the enactment of the English provision, on which s. 26 of our Act is based, was that such evidence was not in general admissible.

 

 

37. It remains to be emphasised that, as I have already indicated, no useful comparison may be drawn, in this context with the conduct by a trial judge of actions for personal injuries. In such cases, evidence of previous proceedings instituted by the plaintiff is frequently relevant under two headings. First, the defendants may be contending that there is some overlap between injuries he sustained in a previous accident and for which he has already been

 

 

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compensated. Secondly, the defendants may be in a position to satisfy the trial judge that the action instituted by the plaintiff is one of a series of actions brought by him on a fraudulent basis. Neither of these considerations arises in the present case.

 

38. The alternative ground – and the one which found favour with the trial judge – on which the defendants sought to justify the cross-examination question was that it went to credit. I am satisfied that this ground also is unsustainable. The purpose of cross-examination as to credit is to undermine the credibility of a particular witness, and, in a case where the plaintiff had not suggested in any way in his direct evidence that this was the first proceeding he had brought for defamation, eliciting from him that he had in fact instituted such proceedings could not in any way affect his credibility. Again, it would be remarkable if a defendant would be precluded from cross-examining as to specific acts of misconduct, but could be allowed, under the guise of a cross-examination as to credit, to introduce evidence of conduct which could not be said to be, of itself, discreditable.

 

 

39. I am satisfied that the trial judge erred in law in permitting cross-examination on matters which were not relevant to the assessment of damages or to credit, but which could have been seriously prejudicial to the

 

 

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plaintiff in enabling, as it did, counsel for the defendants to portray him in extremely colourful language to the jury as a person who was simply in the business of recovering damages for alleged libels, however trivial and inconsequential they might be.

 

Other grounds of appeal

 

40. The other grounds of appeal relied on may be disposed of more shortly.

 

 

41. It was urged that the trial judge should have directed the jury that the plaintiff could not as a matter of law have issued a search warrant or similar order on foot of the letter sent to him by the solicitor. Alternatively, it was submitted that he had failed adequately to direct the jury as to the considerations to be taken into account by them in arriving at a conclusion as to whether the plaintiff could have issued such a search warrant or search order.

 

 

42. The plaintiff in evidence said that he could not act on foot of the letter in question by issuing a search order himself under the relevant legislation or have applied to the District Court for a search warrant because he was unable to assess the reliability of the information he had been given. It was for that reason, it was said, that he immediately wrote back to the solicitor to ascertain what substance there might be in the earlier letter.

 

 

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(29)

 

43. All these matters were fully debated in front of the jury. It was not in issue that, whatever might have been the legal capacity or incapacity of the plaintiff to issue a search order himself, there was nothing to prevent him from applying to the District Court for a search warrant and inviting the District Judge to issue such a warrant on the basis of the information contained in the letter from the solicitor. It was entirely a matter for the jury to consider whether, in those circumstances, the plaintiff had neglected to take steps which might have averted the shooting incident which subsequently took place. I am satisfied that the trial judge instructed the jury perfectly adequately in relation to all these matters and that this ground of appeal must fail.

 

 

44. The second ground of appeal was that the trial judge had failed to put the case made by the plaintiff to the jury. In particular, he is criticised for having reminded the jury of the significance they could attach to the fact that the plaintiffs information as to the possible possession by the occupant of the house of a range of lethal weapons had been transmitted to him by a solicitor, who might be presumed to be a responsible person, and that, in those circumstances, the jury might conclude that the plaintiff should have given more weight to it than he in fact did. I am satisfied that the trial judge was perfectly entitled to draw the attention of the jury to aspects of the evidence which seemed to him to be of importance when they came to consider their

 

 

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(30)

 

verdict, provided that he stressed to them, as he undoubtedly did, that ultimately it was for them, and for them alone, to arrive at a conclusion on the facts. I have no doubt that the trial judge put fully and fairly to the jury the plaintiffs case and that this ground of appeal has not been made out.

 

45. The next ground was that the trial judge had failed adequately to direct the jury following the asking by the foreman of the jury of questions prior to their retirement. The foreman of the jury had pointed out that no witnesses had been called for the defendants and he asked whether it was possible for counsel for the plaintiff to call witnesses from the defendants. The trial judge in response had pointed out that it was possible for the plaintiff s advisers to have subpoenaed witnesses from the defendants, but that this would have presented them with the difficulty that they would be unable to cross-examine those witnesses. That seems to me to have been a fair and adequate response to the question put by the foreman and I am satisfied that this ground has not been made out.

 

 

46. Finally, it was submitted that the trial judge had intervened in the cross-examination by counsel for the plaintiff of the solicitor at what was described as “a critical juncture” in such a way as to deprive the cross-examination of its force. While I would have no hesitation in accepting

 

 

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(31)

 

that there are occasions when interventions by a trial judge in either civil or criminal cases being tried by a jury can be so prolonged and of such a nature as to be unfairly disruptive and even give the jury the impression that he or she is leaning in favour of one side of the case, this was most certainly not so in the trial under consideration. The intervention complained of was, in my view, legitimate and it is stretching credulity to suppose that it could have had any critical effect on the jury’s deliberations. I am satisfied that this ground of appeal has not been made out.

 

Conclusions

 

47. For the reasons stated, I am satisfied that the trial judge was wrong in law in permitting the cross-examination by counsel for the defendant of the plaintiff as to previous proceedings for defamation instituted by him. I would, accordingly, allow the appeal and substitute for the order of the High Court an order directing a new trial on all issues.

 

Hill v. Cork Examiner Publications Ltd.

[2001] IESC 95 (14 November 2001) Murphy J

 

By letter dated the 23rd day of October, 2000, Messrs Ronan Daly Jermyn, Solicitors on behalf of the Examiner, informed Messrs Fitzgerald & O’Leary, Solicitors on behalf of Mr Hill, of their intention to lead evidence of certain matters of which particulars were set out in that letter. Those particulars referred to three prosecutions, namely, the prosecution of Mr Hill by the DPP on the 31st of May, 1989; the prosecution of Mr Hill on the 7th of May, 1992; the prosecution of Mr Hill on the 17th of February, 1996, and, finally the prosecution of Mr Hill on the 5th of July, 1994, which resulted in his being sentenced to the term of imprisonment which he was serving at the date on which the article was published. In relation to the three earlier prosecutions Mr Hill was not sentenced to any term of imprisonment. The letter from Messrs Ronan Daly Jermyn aforesaid was in effect a notice under Order 36 Rule 36 of the Rules of the Superior Courts which, while permitting the Examiner to give such evidence in mitigation of damages, limited such evidence to that of which particulars had been furnished, save with the leave of the trial Judge.

 

As a result of that notice, a debate took place between Counsel and certain rulings were made by the learned trial Judge at the outset of the trial. Detailed discussion took place as to the nature of evidence as to the bad reputation of the plaintiff which might be tendered on behalf of a defendant in a libel action. It was accepted by both Counsel that the judgment of Cave J in Scott .v. Samson [1882] 8 QBD 491 correctly stated the law in relation to general evidence of bad reputation when he said:-

 

“Damage, however, which he (the plaintiff) has sustained must depend almost entirely on the estimation in which he was previously held. He complained of an injury to his reputation and seeks to recover damage for that injury; and it seems most material that the jury who have to award those damages should know, if the fact is so, that he is man of no reputation. To deny this would, as is observed in Starkie, evidence, be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation.”

The problem has always been to distinguish between evidence of general bad reputation and of specific conduct on which such reputation might be based. As Lord Denning pointed out in Plato Films Ltd .v. Speidel [1961] 1 AC 1090 (at 1138):-

 

“In order to arrive at a man’s character and reputation we should call those who know him and have had dealings with him: for they provide the only sound foundation on which to build … If it is evidence of good character, a witness of good standing is called, such as a clergy man, a school teacher, an employer and is asked such questions as these: “What are you? How long have you known him? Have you known him well? Have you had an opportunity of observing his conduct? What character has he borne during the time for honesty, morality or loyalty? (according to the nature of the case)”. “As far as you know, has he deserved that character?” …. If it is a witness of bad character which is given (such as that of a man who is a reputed thief or a woman is a common prostitute), the evidence often takes the form of a police officer who knows him being called and saying: “I know the defendant and have known him (or her) for some time he is a well known pickpocket” or “she is a common prostitute” or as the case may be.”

In general, specific acts of misconduct are not admissible as proof of general bad reputation. Perhaps the primary reason for that restriction is that the allowance of such evidence would lead to innumerable subsidiary trials of collateral issues concerning the reputation of the plaintiff. It is clear that evidence of specific previous convictions is an exception to the rule. One justification for that exception is the clarity and certainty with which a conviction can be established. In the course of his debate with Counsel the learned trial Judge summarised the position as follows:-

 

“He (the plaintiff) has an admitted bad reputation relating to the offence of which he was serving a sentence at the time. That is a serious crime which the jury will be told about but I do not think it would be proper to go into the minutiae of that particular crime. It would mean investigating the entire of it and it would be bringing the jury down a cul de sac which would not really in the end help them very much. At the end of the day they know he has been convicted of a serious crime, that is all they require to know. I will certainly exclude all attempts to investigate the details of that particular crime.”

When Counsel on behalf of the Examiner indicated his intention to put to the Plaintiff the publicity which the offence had attracted the learned trial Judge commented as follows:-

 

“You will be treading on delicate ground but the way you put it just now it seemed to me to be acceptable but you are treading on delicate ground there is the risk of having the jury discharged it maybe so it is only right to indicate that to you.”

The learned trial Judge went on to state expressly that the publicity attracted by the offence would have been well publicised in Cork and evidence of it would be unobjectionable. As the Judge said “widespread publicity is fair enough because that relates to his reputation”.

 

In my view those observations made, as they were, at the commencement of the case and not directed to any specific application to tender any particular evidence or to rule on any question put in cross-examination, are very helpful and entirely unobjectionable. Furthermore, the warning that a particular line of cross-examination might lead to the jury being discharged was not, in the context, a threat by the Judge but a fair reminder by him to Counsel of the delicate balance which the law requires to be preserved between giving evidence of general reputation and excluding the matters of specific misconduct (other than criminal convictions).

 

The Examiner did not in fact call any witnesses to give evidence of general bad reputation but did invite witnesses, and in particular Mr Denis Hill, to comment on his reaction to the conviction of the Plaintiff for causing actual bodily harm to a member of the Garda Síochána. Mr Hill Senior was not invited to comment on any particular newspaper reporting on his son’s conviction for that offence. It would seem to me that evidence of that nature would have been admissible and within the general ruling given by the trial Judge at the commencement of the trial.

 

On behalf of the Examiner it was contended that the form of the trial Judge’s charge to the jury tended to imply or assume that the article was defamatory of Mr Hill and, furthermore, by describing sex offences as “loathsome crimes” the Judge had usurped the function and role of the jury in determining whether the article was defamatory and, if so, the range of damages to be awarded by way of compensation.

 

This argument is based – as is so often the case of a challenge to a charge – on a restricted analysis of the charge itself and more particularly the context of the trial in which the charge is delivered. From the outset the entirety of the article was made available to the jury. It is proper to recall that the article was handed in to the jury and furthermore Counsel on behalf of the Plaintiff, in opening the case, was required by the defence to read the entire of the article to the jury. In my view there could be no doubt whatever but that the jury had an opportunity of seeing, reading and understanding the totality of the article and the accompanying photographs. It must also be recognised that the trial Judge in his charge emphasised more than once that all matters of fact were to be decided by the jury and not by the Judge. Finally – and in the circumstances of this case it is of particular importance- no requisition was made in respect of the charge in relation to any such complaint but only in regard to the particular issue as to whether the Plaintiff (Mr Hill) had consented to his photograph appearing in conjunction with the article.

 

In the course of his charge the learned trial Judge gave directions to the jury in relation to the matter in which the photograph was taken of Mr Hill in his cell and subsequently used in the offending article. Counsel on behalf of the Examiner made a requisition in relation to that aspect of the charge and sought (and obtained) the recall of the jury for further guidance in relation to it. In his direct evidence Mr Hill explained that he had made it clear that he did not want to be in any picture taken of the cell occupied by him and that it was in fact agreed by the Governor of the prison that he would not be in the picture. In cross-examination when Mr Hill repeated that he had not consented to the photograph being taken it was put to him that the photograph might reasonably create the impression that he was actually posing for the photograph. His account was challenged along those lines. No evidence was called on behalf of the Defendants to dispute the Plaintiff’s version and the evidence given by the prison Governor and Mr Maurice Healy, a prison officer, might be described as inconclusive. As the trial took place five years after the photograph had been taken, it is not surprising that the prison officers were vague in their recollection as to precisely what was said at the time when the photographs were taken. I am fully satisfied that there was nothing included in or omitted from the charge in relation to this aspect of the matter which could have unfairly affected the outcome of the trial.

 

As to damages: In some cases it is possible to make a reasonably accurate estimate of the damages sustained by a plaintiff as a result of the wrong doing of a defendant. Where a plaintiff is disabled as a result of the wrong doing with the result that it can be anticipated with reasonable confidence that he would be unable to return to work at all or at any rate to resume employment at a particular level of remuneration for a period which can be ascertained with reasonable confidence the loss so sustained can be determined on the basis of mathematical – perhaps crude mathematical – principles. On the other hand it is difficult, if not impossible, to find any nexus between the pain, embarrassment or disfigurement suffered by a plaintiff and the sum of money which would be appropriate to compensate him for any such consequences of a wrong doing. Judges in charging juries as to their responsibilities in determining damages or in performing the same task themselves can say or do little more than recall that damages are designed to compensate for the consequences of a wrong doing and not to punish the wrong doer. It will always be said – perhaps unhelpfully – that the sum awarded should be reasonable to the plaintiff and also reasonable to the defendant. In relation to the extent to which a trial judge could and should give guidance as to an appropriate measure of damages was considered by this Court in De Rossa .v. Independent Newspapers [1999] 4 IR 6 and again in O’Brien .v. MGN (unreported 25th October, 2000). Whilst other jurisdictions have accepted the concept of such guidelines that concept has been rejected in this jurisdiction. Apart from any other consideration there would appear to be insuperable difficulties for any judge to assemble the appropriate body of information on which to base such guidelines.

 

A special status attaches to an award for damages for defamation as determined by a jury. In Barrett .v. Independent Newspapers [1986] IR 13 the then Chief Justice pointed out (at page 19) that:-

 

“The assessment by a jury of damages in a defamation action had an unusual and emphatic sanctity and an appellate court should be slow to interfere with such an assessment. However, the discretion of the jury in the assessment of damages was not limitless and the damages awarded must be fair and reasonable having regard to all of the circumstances and must not be disproportionate to the injuries suffered by the plaintiff and a necessity to vindicate the plaintiff in the eyes of the public.”

In the present case the learned trial Judge did remind the jury that “the accused has a damaged character. He has pleaded guilty to a serious crime of violence in the course of an affray involving a number of people in which he has pleaded guilty to causing substantial personal injury to a member of An Garda Síochána. That is a serious offence”.

 

The learned Judge in his trial went on to say:-

 

“If you find, therefore, that he was libelled was the article then he is entitled to damages but not to the extent which would be justified if he had himself a blameless character.”

Indeed the learned trial Judge in the course of his charge emphasised that:-

 

“If you come to assess damages there is no doubt about it that this case is not one where large damages are merited.”

There was indeed one aspect of the charge on which both parties were agreed and on which the trial Judge inadvertently misdirected the jury. The learned Judge did refer to the career of the Plaintiff subsequent to his release from prison and the good reputation and good work record which he created in the subsequent years. As a matter of law that subsequent reputation was not directly relevant in ascertaining the damages caused by the defamatory article. To that extent the Examiner might have objected to the observations of the trial Judge. On the other hand the emphasis placed on the relatively prompt reinstatement of the Plaintiff’s good name was a factor which might have tended to reduce the amount of the damages awarded by the jury. Certainly neither party sought to raise any requisition on the charge of the learned trial Judge in respect of that matter.

 

At the end of the day this Court is left with the difficult task of determining whether an award of £60,000, for what was a fairly serious libel of a young man, albeit a young man with a somewhat flawed reputation, was disproportionate to the injury done to him in all of the circumstances of the case. One particular circumstance to which the Examiner draws attention is the fact that any imputation that the Plaintiff was or fell within the category of sex offenders or rapists was corrected by a notice or clarification published in the Examiner on the 21st of November, 1995. That clarification was not an apology and in the circumstances could not have been. Moreover, the Examiner emphasises that the clarification was published at the earliest practicable date: the delay in publication being due substantially to the failure of the Plaintiff for his legal advisors to co-operate in publishing such a notice at an earlier date.

 

There is no doubt that the sum of £60,000 awarded by the jury was a substantial sum. It may well be at the higher, or even the highest, of the figures in the range which would be appropriate to compensate a Plaintiff for the wrong doing which he has suffered. However I am not satisfied that the figure awarded is so disproportionate to the injury sustained by the Plaintiff (Respondent) that it can or should be set aside by this Court. Accordingly I would dismiss the appeal and affirm the order and judgment of the High Court.

Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems

2016 4809 P

High Court

19 July 2016

unreported
[2016] IEHC 414
Mr. Justice Brian J. McGovern

July 19, 2016

JUDGMENT
1. These proceedings concern the transfer of data by Facebook Ireland Limited (“ FIL ”) to its US parent company Facebook Inc. and whether this transfer is lawful under both national and EU data protection law.

2. The second named defendant, Maximillian Schrems, filed a complaint with the plaintiff on 25th June, 2013, in which he argued that the transfer of his personal data by FIL to its US parent company was unlawful. Following the hearing of judicial review proceedings in the High Court on 29th April, 2014, a reference was made to the Court of Justice of the European Union (“ the CJEU ”) in which it held, inter alia, that, by failing to afford EU citizens any possibility of pursuing effective legal remedies in the US in connection with any alleged contravention of their rights under Article 7 and/or 8 of the Charter, Commission Decision 2000/520/EC of 26th July, 2000, (“ the Safe Harbour Decision ”) was in breach of Article 47 of the Charter and therefore invalid. After the CJEU ruling, the judicial review proceedings returned before the High Court and, on 20th October, 2015, an order was made quashing the Commissioner’s refusal to investigate the complaint brought by Mr. Schrems. The complaint was submitted back to the Commissioner for investigation. Accordingly, the Commissioner opened an investigation into the complaint and, following the hearing of a reformulated complaint, the Commissioner, on 24th May, 2016, issued a draft decision. The decision was issued in draft form so as to preserve the right of Mr. Schrems and/or FIL to make further submissions in relation to its terms and the Commissioner will give consideration to such submissions in due course.

3. The investigation of the reformulated complaint by the Commissioner was conducted on the basis of two strands which proceeded in parallel. Strand one comprised a factual investigation which focused on establishing whether FIL had continued to transfer subscribers’ personal data to the US subsequent to the CJEU ruling and, if FIL had continued to do so, strand one of the investigation also sought to examine the legal bases on which such transfers are effected. Strand two sought to examine whether, in view of the adequacy criteria identified in Article 25(2) of Directive 95/46/EC of 24th October, 1995, (“ the Directive ”), the US ensures adequate protection for the data protection rights of EU citizens.

4. The Commissioner has formed the view that she cannot conclude her investigation without obtaining a ruling from the CJEU on the validity of the three Commission Decisions on standard contractual clauses that have been approved by the Commissioner as fulfilling the requirements of Article 26(4) of the Directive (“ the SCC Decisions ”). These are:-

(1) Commission Decision 2001/497/EC of 15th June, 2001, on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC (Text with EEA relevance) (notified under document number C(2001) 1539) [2001] OJ L181, 4.7.2001, pp. 19-31;

(2) Commission Decision 2004/915/EC of 27th December, 2004, amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries (notified under document number C(2004) 5271) (Text with EEA relevance) [2004] OJ L385, 29.12.2004, pp.74-84; and,

(3) Commission Decision 2010/87/EU of 5th February, 2010, on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (notified under document C(2010) 593) (Text with EEA relevance) [2010] OJ L39, 12.2.2010, p. 5-18.

5. In these proceedings the plaintiff claims:-

(1) a declaration as to the validity of the SCC Decisions insofar as they apply to data transfers from the European Economic Area to the United States having regard to the Charter of Fundamental Rights of the European Union (“ the Charter ”) and in particular Article 7 and/or Article 8 and/or Article 47 thereof.
(2) A reference to the CJEU pursuant to Article 267 of the Treaty on the Functioning of the European Union and para. 65 of the ruling of the CJEU in Maximillian Schrems v. Data Protection Commissioner (Case C-362/14), 6th October, 2015, in order to obtain a preliminary ruling on the validity of the SCC Decisions insofar as applies to data transfers from the EU to the US, having regard to the Charter and in particular to Article 7 and/or Article 8 and/or Article 47 thereof.
Applications by Parties to be joined as Amici Curiæ
6. Within the State and across the EU, there are a significant number of entities that rely on the SCC Decisions for the purpose of making data transfers between the EU and the US. The outcome of these proceedings has the potential to have significant economic and commercial consequences for a range of companies and individuals across the European Union. In view of this, a number of parties have brought applications to be admitted as amici curiæ in these proceedings. The parties seeking audience in that capacity are:-

(i) The United States of America;
(ii) BSA Business Software Alliance;
(iii) IBEC Limited;
(iv) Electronic Frontier Foundation (EFF);
(v) Digital Europe;
(vi) Irish Council of Civil Liberties and American Civil Liberties Union;
(vii) Electronic Privacy Information Centre (EPIC);
(viii) Irish Human Rights and Equality Commission; and,
(ix) Mr. Kevin Cahill.
7. The parties were largely in agreement as to the legal principles which apply. In H.I. v. Minister for Justice, Equality and Law Reform [2004] 3 I.R. 197, the Supreme Court held that the court may appoint an amicus curiæ pursuant to its inherent jurisdiction. In O’Brien v. Personal Injuries Assessment Board (No.1) [2005] 3 I.R. 328, Finnegan P. identified a number of matters which the court ought to consider when deciding whether to exercise its discretion in favour of appointing an amicus curiæ. The first is whether the applicant has “a bona fide interest and is not just acting as a meddlesome busybody” ; secondly, whether the case has a “ public law dimension ” and that the applicant “ has not just a sectional interest, that is the interest of its members, but a general interest which should be respected and to which regard should be had ”; and, thirdly, whether “ the decision may affect a great number of persons ”.

8. In Doherty v. South Dublin County Council [2007] 1 I.R. 246, the Supreme Court upheld the order of the Quirke J. in the High Court whereby the learned trial judge found that the equality authority had statutory authority to act as an amicus curiæ.

9. In Fitzpatrick v. F.K. [2007] 2 I.R. 406, Clarke J. said at 415-416:-

“…it seems clear that amongst the important factors to be taken into account are:-

(a) whether the proposed amicus curiæ might be reasonably said to be partisan or, on the other hand, to be largely neutral and in a position to bring to bear expertise in respect of an area which might not otherwise be available to the court; and,
(b) the stage which had been reached in the proceedings with particular reference to a distinction between trial courts and appellate courts.”
10. At p. 416, he added a further factor of particular importance as:-

“…the extent to which it may be reasonable to assume that the addition of the party concerned as an amicus curiæ might be said to bring to bear on the legal debate before the courts on an issue of significant public importance, a perspective which might not otherwise be placed before the court.”

11. At p. 417, he said:-

“While I am not persuaded that there is an absolute bar to parties being joined as amicus curiæ at trial level, I believe that the circumstances in which it would be appropriate so to do should, ordinarily, be confined to cases where there is no significant likelihood that the facts of an individual case are likely to be controversial or to have a significant effect on determining what issues of general importance may require to be determined.”

12. In H.I. v. Minister for Justice, Keane C.J. said that the jurisdiction is one to be exercised “ sparingly ”. In EMI Records (Ireland) Ltd. v. UPC Communications Ireland Ltd. [2013] IEHC 204, Kelly J., (as he then was), adopted the reasoning of Keane C.J. and stated, at para. 66, that the court must additionally take into account “the limited circumstances in which an amicus may be appointed in a court of trial as distinct from an appellate court”.

13. The reluctance of the court to admit a party as an amicus curiæ if they have a strong view or vested interest seems to have diminished somewhat in recent times and, in Maximillian Schrems v. Data Protection Commissioner (No. 2) [2014] IEHC 351, Hogan J. observed, at para. 35, that: “ the application of these principles is not straightforward ” and so far as the attitude towards the partisan nature of an applicant is concerned, he observed, at para. 27, that the courts have “…engaged in something of a polite fiction” . It is, of course, true that in many cases where a party applies to be accorded the status of an amicus curiæ it is precisely because they have a significant interest in the issue in question. So far as the court is concerned, it is important to recognise that an amicus curiæ is there to assist the court and has not become a party to the action. As Clarke J. said in Fitzpatrick v. F.K. at p. 417:-

“…an amicus should not be permitted to involve itself in the specific facts of an individual case. It is only after those facts have been determined that the extent to which issues of general importance may remain for decision will be clear. That is far more likely to be the case at the appellate rather than the trial level.”

14. In EMI Records (Ireland) Limited v. UPC Communications Ireland Limited, Kelly J. at para. 69 said:-

“If it is the intention of the applicant to contest either of the factual matters…then it will be seeking to involve itself in the factual aspects of the proceedings and there is no role for an amicus curiæ in that regard.”

15. There are a number of matters which are relevant to the court’s consideration of the applications to be joined as amici curiæ. These proceedings do involve issues of public law. But they are not, in any real sense, a lis inter partes. One of the reliefs sought by the plaintiff is a reference to the CJEU. It is accepted by all the applicants that, if a reference is made, they cannot be heard before the CJEU unless they were involved in some way before the court of first instance. (See: Article 96 of the Rules of Procedure of the Court of Justice of the European Union.)

16. Because there is no factual dispute or lis inter partes in these proceedings, the applicants argue that the usual rule, excluding the involvement of an amicus curiæ at the first instance hearing, does not apply. Furthermore, when the issues raised in the proceedings are almost certain to involve a reference to the CJEU, it is essential that any party who has a right to be heard as an amicus curiæ should be heard in the proceedings before the High Court. It seems to me that this is a reasonable view. Therefore, having regard to the particular circumstances of this case, I am prepared to entertain the applications from the various parties to be admitted as an amicus curiæ at this stage.

17. In reaching my conclusion as to which of the applicants should be admitted as an amicus curiæ, I have had regard to the jurisprudence referred to above, and also to the fact that the Data Protection Commissioner is responsible for upholding the privacy rights of individuals in relation to the processing of their personal data. As such, she can be expected to raise issues sought to be advanced by some of the applicants.

18. I have also had regard to the underlying principles that the exercise of the court’s discretion to admit an amicus curiæ, should be exercised sparingly. That is particularly relevant in this case where so many applicants seek to be joined.

Decision
19. In respect of each of the applicants, I make the following determination:-

(i) United States of America
The United States has a significant and bona fide interest in the outcome of these proceedings. At issue in the proceedings is the assessment, as a matter of EU law, of the applicant’s law governing the treatment of EU citizens’ data transfer to the US. The imposition of restrictions on the transfer of such data would have potentially considerable adverse effects on EU-US commerce and could affect US companies significantly. I am satisfied that the US meets the criteria for being joined as an amicus curiæ and that it can bring added value to the case which the parties may be unable to provide.

(ii) Electronic Privacy Information Centre (EPIC)
The applicant is a public interest, not-for-profit, independent, non-governmental, research and educational organisation based in Washington DC which claims to be the leading privacy and freedom of information organisation in the US with special expertise in government surveillance and related legal matters. It has appeared frequently in the US as an amicus curiæ and has also appeared before the European Court of Human Rights in that capacity. It seems to me that it would be in a position to offer a counterbalancing perspective from the US Government on the position in the US and could bring to bear an expertise which might not otherwise be available to the court. While the first named defendant opposed the application of the proposed amicus on the basis that the second named defendant was a member of the advisory panel, this Court has taken into consideration the fact that the advisory panel is comprised of ninety-four individuals. Additionally, it has accepted the undertaking of EPIC, given through Counsel in the hearing of the application, that the second named defendant will have no role in preparing any submissions or providing advice or any other assistance to the applicant and furthermore that there will be no communication between EPIC and the second named defendant regarding these proceedings whilst they are in existence. Accordingly, I will admit EPIC as an amicus curiæ.

(iii) BSA Business Software Alliance
The applicant is a not-for-profit international trade association. Its members include leading global technology providers such as Apple, IBM, Microsoft, Intel, Siemens PLM, SAS, Oracle and many other large and smaller innovators, some having their European headquarters or substantial operations in the State. Having considered its application and the submissions made on its behalf, I am satisfied that it meets the criteria for being admitted as an amicus curiæ. Its members include some of the largest technology providers in the world and, in my view, it is in a position to offer relevant views which might otherwise not be available to the court. I will admit this body as an amicus curiæ.

(iv) Digital Europe
Digital Europe (formerly the European Information, Communications and Consumer Electronics Technology Industry Association) was established in 1999 to represent the interests of both national associations and corporations operating in the digital technology interest in Europe. It is now the principal representative body on matters of EU public policy for the members of the digital technology industry in Europe. It is a not-for-profit association governed by Belgian law consisting of sixty-two corporate members including some of the worlds largest IT, telecoms and consumer electronic companies and thirty-seven national trade associations from across Europe. FIL is not a corporate member of Digital Europe although it is a member of some of the national trade associations that are, in turn, members of Digital Europe. I am satisfied from the evidence adduced that it is one of the most substantial and representative groups for the digital technology industry in Europe and that many of its members have an interest in and will be affected by any decision made in this case. This applicant will be in a position to assist the court by bringing to bear its expertise in a way which might not otherwise be available to the court. I will, therefore, admit Digital Europe as an amicus curiæ.

(v) Electronic Frontier Foundation (EFF)
The applicant claims to be the leading American civil liberties non-governmental organisation focusing on digital technologies and was founded in 1990, with an interest in defending civil liberties and innovation online. Its five main substantive areas of activity are:-

(i) freedom of speech and expression;
(ii) privacy;
(iii) transparency and governmental accountability;
(iv) citizen/consumer fair use of intellectual property; and,
(v) innovation.
Having considered the affidavit evidence offered by this applicant and the submissions made on its behalf, I am not satisfied that it can offer any particular assistance to the court which will not be furnished by either the parties to the proceedings or the amici curiæ whom I have decided to admit. I, therefore, refuse the application of EFF to be joined as an amicus curiæ.

(vi) Irish Council for Civil Liberties and American Civil Liberties Union
These applicants made separate representations to be admitted as amici curiæ but informed the court that, if admitted, they will make a joint submission. Having considered the applications of these parties and their respective submissions, I am not satisfied that they can bring a new perspective to the proceedings or assist the court beyond the way in which the plaintiff and the second named defendant can do and also some of the other amici curiæ that have been admitted. I, therefore, refuse their applications.

(vii) Mr. Kevin Cahill
This individual applicant has extensive expert experience in the world of Information Technology. However, it seems to me from his submission that his expertise lies in the area of giving evidence which he has done in the past before many courts and reputable bodies. He has also published extensively on the issue of data protection and Information Technology. As a general rule, an amicus curiæ is not permitted to give evidence and the thrust of the application of Mr. Cahill to be admitted as an amicus curiæ is to give the benefit of his expertise to the court in the way that an expert witness would. He is not a lawyer and has not established that he could assist the court from a different perspective to the parties before the court or other amici curiæ who have been joined. I refuse his application.

(viii) IBEC Limited
IBEC is a not-for-profit entity which operates as a representative body for business in Ireland and is a registered trade union for Irish employers. IBEC is the umbrella group for forty-four separate sectoral trade associations and has eighteen policy committees. It is charged with the role of protecting the interest of Irish business. Having considered the affidavit evidence offered by IBEC and the submissions made on its behalf, I am not satisfied that it is in a position to add anything by way of assistance in these proceedings that other parties to the proceedings or other amici curiæ cannot do. I refuse the application of IBEC to be joined as amicus curiæ .

(ix) Irish Human Rights and Equality Commission
There is no doubt that the issues arising in these proceedings come within the scope of this applicant’s functions under the Irish Human Rights and Equality Commission Act 2014. Section 10(2)(e) entitles the Irish Human Rights and Equality Commission to apply to the High Court to be heard as amicus curiæ in appropriate cases. The remit of the Commission goes way beyond data protection and information technology issues and involves the protection and promotion of human rights and equality generally. The Data Protection Commissioner is the entity in the State that has a particular remit with regard to issues of data protection. Paragraph 1 of the statement of claim in these proceedings sets out the role of the Commissioner:-

“The plaintiff is the Data Protection Commissioner in Ireland (‘the Commissioner’), a corporate body established by statute, and the person charged with the enforcement and monitoring of compliance with the Data Protection Acts 1988 – 2003 (‘the Acts’). The Commissioner is also the person designated as the national supervisory authority for the purpose of monitoring the application in Ireland of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing personal data and on the free movement of such data (‘the Directive’).”

Having considered the application of the Irish Human Rights and Equality Commission, I am not satisfied that it can offer any assistance to the court that cannot be offered by the Data Protection Commissioner or, indeed, some of the other parties to the proceedings and amici curiæ that I have allowed to be joined. I, therefore, refuse the application of the Irish Human Rights and Equality Commission to be joined as amicus curiæ.

20. I will put this matter in for further directions, at which time any issues concerning the nature of the assistance to be given by the amici curiæ can be discussed. I have in mind issues such as whether or not any such party wishes to give evidence on US law, as opposed to the US regime surrounding data transfer and whether evidence of law should be given by way of affidavit or in submissions. The parties can address me on those issues and any ancillary issues at a further directions hearing.

In re R Ltd

[1989] ILRM 757; [1989] IR 126

Finlay CJ
his is an appeal against orders made in the High Court pursuant to s. 205(7) of the Companies Act 1963. These orders directed:

(a) that these proceedings under s. 205 of the Act and every part thereof be held in camera and

(b) that none of the affidavits or exhibits referred to or facts therein recited, including the petitions and pleadings, be disclosed to anyone who is not a party to the proceedings.

The first of these orders was dated 16 September 1988 and was made ex parte by Johnson J, and the second was dated 4 October 1988 and was made upon a notice of motion brought by the petitioner to rescind the order made by Johnson J ex parte.

This second order was made by Costello J and in it he refused the application to rescind the order previously made, in effect affirmed that order and added to it the inclusion of the petitions and pleadings in the matters not to be disclosed.

The subsection
S. 205(7) of the Act of 1963 reads as follows:

If in the opinion of the court the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part thereof shall be in camera.

The nature of the proceedings provided for in s. 205 and the variety of relief which may be obtained in such proceedings is contained in s. 205(1) to (4) of the Act of 1963 which subsections read as follows:

(1) Any member of a company who complains that the affairs of the company are being conducted or that the powers of the directors of the company are being exercised in a manner oppressive to him or any of the members (including himself), or in disregard of his or their interests as members, may apply to the court for an order under this section.

(2) In a case falling within s. 170(3), the Minister may apply for an order under this section.

(3) If, on any application under subs. (1) or subs. (2) the court is of opinion that the company’s affairs are being conducted or the directors’ powers are being exercised as aforesaid, the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether directing or prohibiting any act or cancelling or varying any transaction or for regulating the conduct of the company’s affairs in future, or for the purchase of the shares of any members of the company by other members of the company or by the company and in the case of a purchase by the company, for the reduction accordingly of the company’s capital, or otherwise.

(4) Where an order under this section makes any alteration in or addition to any company’s memorandum or articles, then, notwithstanding anything in any other provision of this Act but subject to the provisions of the order, the company concerned shall not have power without the leave of the court to make any further alteration in or addition to the memorandum or articles inconsistent with the provisions of the order; but, subject to the foregoing provisions of this subsection, the alterations or additions made by the order shall be of the same effect as if duly made by resolution of the company, and the provisions of this Act shall apply to the memorandum or articles as so altered or added to accordingly.

Neither of the parties to this appeal sought to challenge the validity of s. 205(7) of the Act, having regard to the provisions of the Constitution. The court, therefore, must proceed on the well-established presumption of the validity of all Acts of the Oireachtas until that presumption is displaced.

The subsection must be considered as providing for a special and limited case within the meaning of Article 34.1 of the Constitution and as being a prescription by law for exemption from the general requirement that justice should be administered in public.

Submissions on behalf of the appellant
The appellant makes four main submissions and they are:

1. He asserts that the granting of an order under subs. (7) upon an ex parte application is not ever within the jurisdiction of the court and should not have been done in this case.

2. He asserts that on the facts of this case and on the proper construction of the subsection no order for a hearing in camera should have been made.

3. In the alternative, he contends that if an order under the subsection were on the facts of this case permissible it should have applied only to the hearing of part of the proceedings.

4. He contends that so much of the order as purports to prohibit the disclosure of the affidavits and other documents and facts recited therein to anyone who is not a party to the proceedings is outside the powers of the court conferred on it by this subsection.

The subsection
The considerations in general which arise on the construction of this subsection do not appear to have been examined by any court prior to the hearing of this application, and it is, in my view, necessary to examine them before seeking to apply the terms of the subsection to the facts of the instant case.

I am satisfied that the following principles apply to the construction of this subsection.

1. The meaning of the expression ‘the hearing of the proceedings or any part thereof shall be in camera’ is that such hearing shall be otherwise than in public.

2. Having regard to the fact that this subsection is constitutionally permissible only as an express legislative exception to the provisions for the administration of justice in public it must be strictly construed in the sense that it must be availed of only when and to the extent that it is necessary in the interests of justice to protect the legitimate interests of a company involved in a s. 205 petition.

3. S. 205 in general provides a form of procedure and remedies which are peculiarly the creatures of statute. A member of a company seeking relief under that section does not appear to me to have any special personal interest or right under the Constitution requiring the hearing of the proceedings in public which is independent of the mandatory provisions of the Constitution already referred to.

4. The subsection can only be invoked if the legitimate interests of a company are involved and it could never be availed of to conceal from publication wrongful activities on the part of a company, its directors, its officers, or servants.

5. The subsection cannot be invoked to protect the good name of any individual, whether a member of the company concerned or not, unless that protection is necessary to avoid a consequential serious prejudice to the legitimate interests of the company.

6. In a case where the power of the court under the subsection can be properly invoked the hearing in camera should be confined to such part only of the proceedings as is necessary for the protection of the legitimate interests of the company. To this principle there is, in my view, an inherent qualification, namely, that an order for the hearing of part only of the proceedings under s. 205in camera should not be made where it would result in an unsatisfactory and unjust trial of the issues arising under the application brought pursuant to the section.

7. If any party or witness in the proceedings under s. 205 has information which might be seriously prejudicial to the legitimate interests of the company, if published, an order under subs. (7) cannot per se prohibit him from publishing such information merely on the basis that it may be revealed during the hearing. Since, however, an order duly made under s. 205(7) is one the breach or disregard of which would be contempt of court, the court should ensure that it is not circumvented and for that purpose may, and probably should, in an appropriate case express the order for a hearing in camera so as to make it unambiguous. Thus the publication of pleadings and affidavits drafted and sworn for the purpose of the application would be prohibited in just the same way as would the publication of a report of the oral testimony given at the hearing.

8. These considerations concerning the effect of an in camera order duly made under s. 205(7) apply, of course, mutatis mutandis to the making of an in camera order under the subsection in respect of the hearing of part of the proceedings.

9. The making of an order pursuant to s. 205(7) does not impinge on or restrict the power of the court to make orders such as restraining defamation or protecting confidentiality. Neither can it be used to aid in any way other powers of prohibition, no matter how desirable the objective of such powers might appear to be.

10. Whilst in other contexts the phrase contained in the subsection: ‘hearing of proceedings’ might well appropriately be confined to the giving of oral evidence or the reading of affidavits in court, it seems to me that the stated purpose of the subsection which is to attempt to protect the legitimate interests of a company from serious prejudice arising from the disclosure of certain information makes it necessary to construe that phrase, namely ‘the hearing of the proceedings’ in a wider sense.

It should, in my view, be construed as including in an appropriate case the originating documents and further pleadings, affidavits, and documents exhibited, as well as oral testimony.

In a case where it was considered necessary, the order could extend to the delivering of the judgment on the petition, though in this instance, in my view, it would be necessary to announce in public the decision of the court, at least, in terms which avoided the serious prejudice concerned, and subsequently to give a detailed, reasoned judgment in camera.

The question as to whether or not it was necessary for the judgment of the court on the final conclusion of the application under s. 205 to be delivered in camera in the manner which I have indicated should be a separate decision to be made by a judge at the conclusion of the case.

Where a judgment contains decisions on questions of law or principles applicable to the interpretation of s. 205, it is desirable that even though the decision may have been announced in public, if the detailed judgment is delivered in camera that an edited version of it, avoiding the revealing of seriously prejudicing information, should be circulated for the benefit of the legal profession and of the public.

The facts of this case
The petition in this case is brought by a person who was up to very recently a chief executive of the company concerned and who is a substantial shareholder in it. His complaint with regard to oppression and impropriety is that the company is being run by the majority of its directors in a manner which is not only likely to lead to a damaging of its interests in the short and long term, but which is actually intended to serve not the interests of the company but rather conflicting business interests of the founder of the company who is neither a director nor a member of it. The detailed allegations coming within this broad ambit are contained in an extremely lengthy affidavit filed by the petitioner in support of an already very detailed petition. That is an affidavit which in addition to facts contains a number of opinions and comments. The allegations contained in the petition and affidavits supporting it have not yet been in any detail dealt with on behalf of the company, but it has been indicated on its behalf that it will be disputing these allegations. The company has so far confined the filing of affidavits to the issue of the form of the order under s. 205(7).

In the affidavit supporting the application for this order nine separate headings of information or documents contained in the petition and supporting affidavit are identified, which in the view of another director of the company would be seriously prejudicial to the legitimate interests of the company if published. In a replying affidavit and in the submissions made on his behalf to this Court the petitioner does not seriously contest that at least three of these items would, if published, be prejudicial to the legitimate interests of the company in a serious way. These are a five-year business plan or programme for the company; details of the accounts of the company; and in regard to one particular transaction identified in the affidavit details of that transaction and the commercial terms of it. In addition, having regard to the relief claimed in the petition, it is possible that at some stage a question of the valuation of the shares of the company could fall to be determined in the application under s. 205 and if it did then probably the whole of the hearing concerning that issue would, if published, be seriously prejudicial to the legitimate interests of the company.

To a very large extent the issue which arises, therefore, on this appeal as it has been argued before this Court, is not whether there should be some order under s. 205(7) but rather as to whether there should be an order under that subsection which covers the entire of the proceedings and, secondly, as to whether upon making such an order either in regard to the entire or to part of the proceedings it is open to and appropriate for the court to prohibit in some specified way the publication of material other than the actual evidence given or opened in court hearings.

Application of the principles to the facts of this case
Applying the principles which I have set out above to the facts which have been shortly summarised, I have reached the following conclusions.

(1) The making of some order under s. 205(7) in regard to this petition was, in my view, necessary and proper.

(2) On the evidence which is not contradicted, the petitioner had communicated the terms of the petition before it was even served on the company, to a public servant who had no direct connection with the case. Correspondence entered into on behalf of the petitioner prior to the institution of this petition is open to the construction of constituting a clear threat of publication of the contents of the petition unless claims made by him in respect of his dismissal as chief executive were satisfactorily dealt with.

In those circumstances, I am satisfied that the making of an original or preliminary order ex parte to hold the hearing of the proceedings in camera was justified, though it is a relief which ordinarily speaking might well be inappropriate on an ex parte application. Any conceivable disadvantage which could arise from the making of such an order ex parte is avoided by the procedure which was adopted in this case of giving an extremely early hearing to an application to set aside or remove that order. I would, therefore, reject the contention that the fact that the original order in camera was made ex parte vitiates the validity of the orders eventually made.

(3) I accept the finding of the learned trial judge that it is probable that the issues in this case will have to be determined on the petition under s. 205 by oral evidence.

Having regard to the breadth and scope of the complaints being made by the petitioner in the petition and affidavits so far filed and to the manner in which they are expressed, I would accept the conclusion reached by the learned trial judge in the High Court that it would be quite impractical to segregate part of the hearing so as to hold it in public and that it would vitiate the real chance of achieving a just result in the petition. I arrive at this conclusion with considerable reluctance, bearing in mind the desirability of confining and restricting as far as possible the holding of any part of proceedings in camera in the courts. I am, however, satisfied that in the interests of justice the order for the entire of the proceedings to be held in camera should be affirmed.

(4) I do not consider that the court has, under this subsection, jurisdiction to prohibit the publication by an individual of any fact merely on the basis that that fact is likely to be proved at the hearing of the petition under s. 205. At the same time it seems to me appropriate on the facts of this particular case expressly to prohibit the publication of facts or documents identifying them as being the contents of affidavits or exhibits referred to in affidavits or of the oral testimony had or to be had in these proceeding…

I would, therefore, disallow the appeal, except to the extent of varying the second part of the order made in the High Court in the manner which I have indicated.

WALSH J

(Griffin and Hederman JJ concurring): The facts of this case relevant to the issue before this Court have been so fully set out by the Chief Justice in his judgment that it is unnecessary for me to repeat any of them.

The issue before this Court touches a fundamental principle of the administration of justice in a democratic state namely the administration of justice in public. Article 34 of the Constitution provides that justice shall be administered in courts established by law and shall be administersd in public save in such special and limited cases as may be prescribed by law. The actual presence of the public is never necessary but the administration of justice in public does require that the doors of the court must be open so that members of the general public may come and see for themselves that justice is done. It is in no way necessary that the members of the public to whom the courts are open should themselves have any particular interest in the cases or they should have had any business in the courts. Justice is administered in public on behalf of all the inhabitants of the State.

Prior to the enactment of the Constitution the question of whether or not particular matters should be heard in public was a matter for the discretion of the judges subject of course always to particular statutory provisions which dealt with the subject. However it was always quite clear that the judges had no discretion to prevent the public from attending hearings unless they were satisfied that either total privacy for the whole or part of any case was absolutely necessary to enable justice to be done. The primary object of the courts is to see that justice is done and it was only when the presence of the public or public knowledge of the proceedings would defeat that object that the judges had any discretion to hear cases other than in public. It had to be shown that a public hearing was likely to lead to a denial of justice before the discretion could be exercised to hear a case or part of a case other than in public.

This fundamental principle in the administration of justice was made part of the fundamental law of the State by Article 34 of the Constitution in 1937. More than a decade later the same fundamental principle was incorporated in certain international instruments dealing with human rights. Article 10 of the Universal Declaration of Human Rights of 1948 and Article 26 of the American Declaration of the Rights and Duties of Man also of 1948 had each required public hearings for the administration of justice. They were followed by several international Conventions incorporating the same principle among which are the Articles 6(1) of the European Convention of Human Rights 1950 and the International Covenant on Civil and Political Rights 1966, Article 14(1). It is also to be noted that one of the rights guaranteed by the sixth amendment to the Constitution of the United States is the right to a public trial in criminal matters.

The Courts (Supplemental Provisions) Act 1961, s. 45(1), permits the administration of justice otherwise than in public in applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction, matrimonial causes and matters, lunacy and minor matters and proceedings involving the disclosure of a secret manufacturing process. The section went on to say that the cases so prescribed should be in addition to any other cases prescribed by any Act of the Oireachtas. These specified exceptions were in fact matters in respect of which the judges had a discretion prior to the enactment of the Constitution. This discretion would appear to have survived Article 64 of the Constitution of Saorstat Eireann, which required the administration of justice ‘in the public courts …’. but did not provide for exceptions to be permitted by statute. The Constitution of 1937 removed any judicial discretion to have proceedings heard other than in public save where expressly conferred by statute. Indeed many matters which come under the heading ‘lunacy and minor matters’ probably do not constitute the administration of justice but simply the administration of the estates and affairs of the wards of court.

It is already well established in our constitutional jurisprudence that a phrase such as ‘save in such special and limited cases as may be prescribed by law’ which appears in Article 34.1 of the Constitution is to be construed as a law enacted, or re-enacted, or applied by a law enacted by the Oireachtas subsequent to the coming into force of the Constitution. In this case it is unnecessary for me to offer any view on the interpretation to be given to s. 45(3) of the Courts (Supplemental Provisions) Act 1961. S. 34(2) refers to ‘any other cases prescribed in any Act of the Oireachtas’ which of course must necessarily mean any Act of the Oireachtas established by the Constitution. There have been many such provisions including the one in question in this case.

What is to be noted in s. 45 of the Act of 1961 is that the cases set out in subs. (1) do not impose any requirement for hearing otherwise than in a public court but leave it to the discretion of the judge in question, but naturally the discretion must be conditioned by the necessary qualification that the doing of justice remains the paramount consideration. Some of the legislative provisions enacted after the coming into force of the Constitution purported to require mandatory privacy and in others it remains a discretionary matter. These statutory provisions also display a varied and unexplained choice of words to describe hearings other than in public, such words as ‘in camera’, ‘in private’ and ‘in chambers’. Examples of the discretionary power of the court are to be found in the Married Women’s Status Act 1957, s. 12(4), the Marriages Act 1972, s. 1(3)(c), and the Companies Act 1963, s. 205(7), and the provisions of s. 14(2) of the Family Law (Protection of Spouses and Children) Act 1981. This latter provision which relates to proceedings in the Circuit Court, and in the High Court on appeal from the Circuit Court, stands in odd contrast to the provisions of s. 14(1) which appears to be mandatory. There are several statutory provisions requiring hearings other than in public which are phrased in mandatory terms but it is not necessary for the purpose of this case to consider the interpretation which should be given to any such mandatory provision. If the dictum of the former Supreme Court of Justice in the case of the Redbreast Preserving Co. Ltd (1957) 91 ILTR 12 at p. 23 means that the constitutional requirement that justice is to be administered in public is satisfied by the public pronouncement of a decision based on evidence taken other than in public where that is not expressly authorised by a post Constitution statute it is clearly incorrect and ought not to be followed. All evidence in proceedings before a court must be taken in public save where otherwise expressly permitted in accordance with the terms of Article 34 of the Constitution.

The statutory provision which arises for consideration in this case namely, s. 205(7) of the Companies Act 1963 confers a discretionary power upon the court. But the discretion cannot be exercised unless the court is of opinion that the hearing of proceedings under the section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interest of the company. That is a condition precedent to the exercise of a discretion but in my view it is not the only condition regulating the exercise of the discretion.

I fully agree with the opinion expressed by the Chief Justice that proceedings include pleadings, affidavits and exhibits as well as oral testimony and indeed the judgment in the case. I also agree with his opinion that the section cannot be invoked simply to conceal from the public evidence of wrongful activities on the part of the company or any member of the company or employee of the company or anybody dealing with the company or the good name of any such persons or anybody else. In Beamish and Crawford Ltd v Crowley [1969] IR 142 this Court refused to accept as a factor in deciding the venue of a trial considerations of the adverse publicity which would affect the sale of the plaintiffs’ goods in the area of the particular venue for the trial. The court held that apart from the exceptions permitted by law, publicity was inseparable from the administration of justice.

It is difficult to know what was the justification for the provisions of s. 205(7) of the Act of 1963 when one bears in mind that in proceedings in any other form of action against the company whether by a shareholder or anyone else no information however damaging or embarrassing to the company may be withheld from publication unless it involved the disclosure of a secret process. The fact that s. 205 provided a special form of relief for minority shareholders alleging oppression does not on the face of it appear to be a reason for giving the procedure provided for in subs. (7), a character different from any other proceedings. However be that as it may it has been so enacted by the Oireachtas. But in my view that does not obviate the overriding consideration of doing justice. In seeking to avail of the protection apparently offered by the subsection the party seeking it must be able to satisfy the court that not only would the disclosure of information be seriously prejudicial to the legitimate interest of the company but it must also be shown that a public hearing of the whole or of that part of the proceedings which it is sought to have heard other than in a public court would fall short of the doing of justice.

In the hearing before this Court it appeared to be agreed between the parties that publication of information relating to the five-year business plan and programme of the company and the details of its accounts, and the details of one particular transaction and the commercial terms of that transaction would be seriously prejudicial to the legitimate interest of the company. As that is the condition precedent for any decision on the part of the trial judge to hear the proceedings other than in a public court the next question which must arise before the discretion can be exercised is as to whether publication of these matters would fall short of the doing of justice.

The first observation to be made is that unless the details of these matters are actually relevant to the issues to be tried they should not be admitted in evidence at all. Assuming they are relevant and admissible one must bear in mind that the nature of the proceedings is that it is the affairs of a juristic person created by the Companies Acts which are under review. That puts the case in a quite different category from the private affairs of a human person. It is difficult to see why the disclosure of evidence of this type must necessarily be deemed to be a failure to do justice in the case of a juristic person where it would not be such in the case of a human person or of any unincorporated body of persons. The defendants as well as the petitioner are entitled to a fair and public hearing by the courts set up under the Constitution. Is the fact that the statutory condition precedent namely a serious prejudice to the legitimate interest of the company to be regarded as necessarily as being equivalent to those exceptional circumstances where public knowledge of the proceedings is likely to lead to an injustice or to defeat the object of the courts in doing justice? I do not think so even though it might be thought that this appeal proceeded on the basis that it does. While in one sense the quarrels between a shareholder or shareholders in a limited company and the company itself might be regarded in the nature of a family squabble it is in no way comparable to family disputes in the true sense. A limited company is the creature of the law and by its very nature and by the provisions of the law under which it is created it is open to public scrutiny.

I do not say that there can never be circumstances where the public hearing of cases such as this would prevent justice being done. However I am of opinion that in the present case no circumstances, so far at least, have been shown which would justify the court at arriving at such a conclusion. I would therefore allow this appeal.

If I were of opinion that the three matters mentioned and agreed as being the ones the disclosure of which would be injurious to the legitimate interests of the company were also shown in the circumstances of the case to be such that their disclosure would prevent justice being done, it would be my opinion that this fact would not justify the whole of the proceedings being held other than in public unless it could be shown that not to do so would make the trial so unsatisfactory and difficult as to fall short of the proper administration of justice in that it would not be a fair hearing, I would support the view that the entire trial should be held other than in a public court. However in the present case the evidence in so far as has been disclosed to this Court, is such that the most one could say is that if part only of the proceedings are heard other than in public it would make the trial inconvenient and possibly even troublesome. That is a very long way from saying that such inconvenience or trouble would cause such trial to amount to a failure to do justice.

I am also of opinion that in either event a judgment should be pronounced in public. If part or the whole of the proceedings were to be heard other than in public I am of opinion that so much of the judgment as does not disclose the particular information which had been withheld from publication should be pronounced in public.

GRIFFIN J:

I agree with the judgment delivered by Walsh J and would accordingly also allow this appeal. I would like however to add a few comments.

As Walsh J has stated in his judgment, in this case no circumstances have, to date, been shown which would justify the court in arriving at a conclusion that a public hearing would prevent justice being done. It may very well be, however, that in respect of one or more of the three items to which the Chief Justice and Walsh J have referred in their judgments, (ie the five-year business plan or programme for the company, details of the accounts of the company, and details of and the commercial terms of one specific transaction into which the company had entered), the company may, at the trial, be able to establish that there are in fact further circumstances which would justify the trial judge in concluding that the disclosure of such item or items would be likely to prevent justice being done in the case. In such event, the trial judge would be justified in hearing the evidence in respect of such item or items otherwise than in public.

In his judgment on the hearing of the motion before him, the learned trial judge concluded that it would be impractical in this case so to separate part of the hearing as to hold it in public whilst excluding the public from hearing the balance of the evidence. I have re-read all the evidence and all the exhibits and documents in the case, and I cannot agree with that conclusion. In my view, there should be no more difficulty in this case than in any other case in isolating that part of the evidence which applies only to such one or more of the three items already referred to, and to hear the balance of the evidence in public. This might indeed be less convenient, but as Walsh J has pointed out that is a very long way from saying that it would cause the trial to amount to a failure to do justice in the case.