THE statistics on libel cases always indicated that Albert Reynolds would win round one of his libel action against the Sunday Times. In Ireland, newspaper defendants seldom win. For every 100 actions begun, about 80 are settled out of court, and of the remaining 20, the media win only four or five. Indications are that the situation is no different in Britain, although recent reforms there are beginning to be felt.
The statistics also show the defence of justification or truth, which was one of the defences pleaded by the Sunday Times, is seldom used and very seldom succeeds. It did not succeed in the Reynolds case either. The jury found the article complained of was not substantially true.
However, where the statistics fall down is in relation to damages. Plaintiffs suing the media for libel usually win large damages. Mr Reynolds was awarded nothing by the jury in London. The fact he was awarded nothing, as opposed to a nominal sum, is surprising, since juries are usually told that if they find libel they must award something. However, the fact that the Reynolds case was never likely to bring in the millions awarded in some English cases in recent years, was not surprising.
The law applied in the English courts is very similar to that applied in Irish courts. They both stem from the common law tradition; the Irish Defamation Act 1961 is closely, modelled on the British Act of 1952.
"But in recent years, while successive Irish governments have declined to reform the out-dated libel laws, the British legislature has belatedly taken steps to make procedural changes and the courts - prompted in part by decisions of the European Court of Human Rights - have effected reforms in relation to damages and directions to juries on how to assess them.
It is not so long ago that a London jury awarded £450,000 to a Greek naval commander libelled by a Greek newspaper that has a circulation of only 50 copies in England. But that picture has been changing. An award of £1.45 million to the owner of a yacht design company was whittled down to £160,000 last year pending appeal; one of £250,000 to Esther Rantzen was reduced by the appeal court to £110,000; while a £1.5 million in the Tolstoy case (in which Lord Aldington was accused of war crimes) was the final crunch. It was appealed to the European Court of Human Rights in Strasbourg, which found that it was so excessive and so disproportionate as to amount to a violation of the right to freedom of expression in Article 10 of the European Convention on Human Rights.
The European Court judgment in that case (which was binding on the UK, since the case was against the UK), was that damages must be proportionate to the injury to reputation suffered and that judges must offer adequate and effective safeguards against a disproportionate large award. That approach was much in evidence in the Reynolds case, where, for example, appropriate figures were suggested to the jury. In Ireland, the Supreme Court in Barrett v Independent Newspapers in 1986 indicated juries should be given guidelines in assessing damages, a point picked up by the Newspaper Commission (of which I was a member) in its report this year.
The issue of damages, however, is not the only area where the influence of the European Court is felt. That court has consistently upheld the public watch-dog role of the media and the right of the public to, information on events affecting them. In a participatory democracy the public is entitled to know what its public representatives are doing and the media affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. Freedom of political debate is at the very core of a democratic society, the court has said, and, therefore, the limits of acceptable criticism are wider as regards a politician. Even where media articles rely heavily on rumours, stories and the statements of others, where they relate to an important matter of public interest, the journalist should not be required to prove the factual basis of them.
WHERE they involve value-judgments there should be no requirement to prove truth. There is little doubt in my mind, based on previous decisions, that if the Reynolds case were pursued to Strasbourg the court would find in favour of the newspaper.
One other aspect of English declamation law that differs from Irish law relates to lodgments in court. The purpose of permitting a defendant to lodge money in court is to share the risk of costs and in that way to try to prompt a settlement and obviate the need for a court hearing. Legal costs' rocket then a case goes to court and often libel costs are much higher than awards. By placing a sum of money in court, which the judge and parties, but not the jury, will know of, the plaintiff is put on notice that if he or she is not awarded more than the sum lodged, then he or she will become liable for all the legal costs - of both sides - from the date of the lodgment. In Mr Reynolds's case a lodgment of £5,005 was apparently made three weeks before the trial and since he was not awarded any damages it would seem that he is liable for all-costs since that date. However, the issue of costs is to be further discussed by judge and counsel.
In Ireland, it is only possible for a defendant to make a lodgment if he or she admits liability. But in Britain, that rule was changed in 1933 to allow a defendant to lodge money for costs without admitting liability. Hence the Sunday Times was able to continue to defend the action.
Reports suggest that Mr Reynolds refused the money lodged because he would not get an apology with it. On that latter point, the Irish Newspaper Commission, appreciated the difficulties for a plaintiff whose overriding concern was to clear his her name. It proposed that a lodgment into court should be permitted without an admission of liability but that a plaintiff who decided to accept the money should be entitled at his/her option to an order in public by the court indicating the amount accepted, the form of defence and the nature of the defamation for which the claim was brought. While £5,005 might not have seemed very attractive, if it had been accompanied by a public statement, as proposed by the Irish Newspaper Commission, it might have appeared more attractive.
At any rate, the case is not over yet. The jurys answers to the questions put to them indicate they did not think the allegations were substantially true, that they did believed the journalist and editor were not motivated by malice and that the article was a fair report of Dick Spring's reasons for leaving government. To that extent, they not only make sense but indeed would appear to strengthen the Sunday Times plea of qualified privilege which reportedly is to be heard in the next few days. The only aspect of the verdict that is unprecedented, therefore, in, my view, is that the jury awarded no damages whatsoever.
