Neutral Citation no. (1999) 1897

Ref:    

SHEC2765

 

 

 

Judgment: approved by the Court for handing down

Delivered:

26/02/99

(subject to editorial corrections)

 

 

                                                                                                                                                      

 

                   IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                                  QUEEN'S BENCH DIVISION

 

                                                                    ------------

BETWEEN:

                                                    GREGORY McCARTNEY

                                                                                                                                       Plaintiff;

                                                                        and

                              LITTLE BROWN AND COMPANY (UK) LIMITED

                                                                                                                                   Defendant.

                                                                    ------------

SHEIL J

            This matter came before Master Kennedy on foot of a summons dated 3 November 1998 whereby the defendant, pursuant to Order 18 Rule 19(1)(a) of the Rules of the Supreme Court (Northern Ireland) 1980, sought an order that the plaintiff's claim  for libel be struck out on the ground that it disclosed no reasonable cause of action.  Rather than strike out the action, Master Kennedy made an order, that the plaintiff should amend his statement of claim to give particulars of those known to him who had read the passage complained of and had made the connection with him in the publication which was the subject of the action.  The plaintiff now appeals against that order made by Master Kennedy. 

            The plaintiff is one of sixteen lawyers who have issued writs for libel arising out of the publication of a book in January/February 1998 by the defendants entitled "Infiltrating the IRA - Dead Ground - the explosive true story of Special Branch Agent Raymond Gilmour". 

            The plaintiff is not named in the passage in the book which is the subject of these alleged libel proceedings, which passage, as set out in the schedule to the statement of claim, reads as follows:

                        "Mr Boal was a QC doing a professional job, but one or two of the other defence lawyers were distinctly murky and a vital link in the provies' chain of intimidation and terror.

 

                        A suspect arrested under the Prevention of Terrorism Act could be held for seven days.  At that time only one person was allowed access to him, his lawyer.  If the RUC succeeded in breaking a suspect, the seven days gave them time to move against other members of his unit before they could be tipped off.  His solicitor thoughtfully provided by the IRA was not always there just to protect his client from the RUC.  He could also relay messages from his IRA bosses and find out what, if anything, the man had told his interrogators.  He could assess the man's mental and physical state at first hand and decide if he was likely to break under further questioning. 

                        If that information was passed back to the provie leadership, IRA men could escape across the border before the police raids began.  A solicitor could also literally hold the power of life and death over the suspect.  Refusing a solicitor sent by the IRA was tantamount to admitting that you were touting, but accepting one could be just as fatal.  The defending lawyer was entitled to see copies of all statements made by the man.  If they incriminated fellow IRA men, and the solicitor passed on the information, the man would be killed, either in prison or as soon as he was released. 

 

                        I recognised a couple of defence lawyers, for I'd seen them plying their trade on behalf of their IRA masters in the Crum and at Long Kesh.  I knew better than to expect a fight under the Queensbury Rules from them. 

 

                        Whatever my views, on the defence lawyers, I have no doubt that the judge, Lord Lowry would at least be impartial and might even lean towards the prosecution."

            Mr Cush, who appeared on behalf of the defendant, accepts for the purposes of this application that the aforesaid passage is defamatory.  As is clear from the passage, the plaintiff is not identified by name but it is alleged in paragraph 4 of the statement of claim that the said words "refer to and were intended to refer to the plaintiff".  Paragraph 4 goes on to give particulars of identification as follows:

 

                        "A.       The said Raymond Gilmour was the principal prosecution witness in a trial of a number of persons accused of terrorist offences which took place at Crumlin Road Courthouse, Belfast from in or about June 1984 until December 1984.

 

                        B.         The said Raymond Gilmour's account of the trial appears mainly at Chapter 16 of the said book and is and was an important and prominent part of his story.  This was a high profile trial known as a supergrass case which received a great deal of attention in the media both inside and outside Northern Ireland.  The plaintiff was one of a comparatively small group of solicitors who represented the accused at the aforesaid trial. 

 

                        C.        The plaintiff at the time of the said trial was employed in the firm of Mullan, Hasson & Company, Solicitors of Clarendon Street, Londonderry, who were representing some of the accused in the aforesaid trial. 

                        D.        The plaintiff attended the trial everyday.  As a result of his duties he would have been in contact with solicitors, counsel, the accused and witnesses in the course of the said trial. 

 

                        E.         His role was a very prominent and public one and his association with the accused as a legal representative would have been widely known, not only to people attending the trial but throughout the police, the security services, the legal profession and the general public in Northern Ireland, but particularly in the City of Derry where his firm was in practice."

            Mr Cush submits that as the plaintiff has not been identified by name in the defamatory passage set out above, he has to specify those persons who identified him as being one of the lawyers referred to in the said passage.  He referred the court to Halsbury's Laws of England, 4th Edition (re-issue) Volume 28 at paragraph 39, part of which reads as follows:

 

                        "However, it is not essential that the plaintiff should be named in the statement.  Where the words do not expressly refer to the plaintiff they may be held to refer to him if ordinary sensible readers with knowledge of special facts could and did understand them to refer to him; such facts are material facts, must be pleaded in the statement of claim and must be proved in evidence in order to connect the plaintiff with the words complained of.  Such a pleading is often called a `reference innuendo' in contrast to a `true innuendo' where the extrinsic facts only bear on the defamatory meaning.  In certain circumstances the plaintiff may be required to identify the persons who are alleged to know the special facts relied upon."  (My underlining)

Mr Cush also referred to Gatley on Libel and Slander, 9th Edition at paragraph 26.25, which reads as follows:

 

                        "It is an essential part of the plaintiff's case to show that he is the person referred to by the defamatory words.  Accordingly, where it is not absolutely clear on the face of the words that they refer to the plaintiff, eg where he is described by his initial letters, or by a fictitious name, or by the name of somebody else, or where he is not mentioned at all, the plaintiff should make clear in his pleading the basis on which he claims to have been identified as the subject of the words complained of.  He should set out the connecting facts which establish the link between himself and the words used, and he should make plain his case as to the existence of a person or persons who in fact linked him with the words by reason of their knowledge of those connecting facts.  These matters are material facts which must be pleaded.  If the plaintiff does not plead such facts sufficiently, his claim will be struck out.  Where a plaintiff is identified in a defamatory newspaper article not by his real name but by pseudonym under which he has written a best selling book, he should plead details of the class of people who read the newspaper in question and (a) who knew that the pseudonym was a pseudonym of the plaintiff, (b) who knew that the plaintiff wrote the book in question and (c) who knew that the words of the article referred to the plaintiff.  The plaintiff may face the difficulty that at the initial stage of pleading he is not aware of every person who read or heard the defamatory words and identified him as their subject.  In such cases the plaintiff may be allowed subsequently to expand his case, provided there is no prejudice to the defendant."  (My underlining)

 

            Mr Cush also referred the court to Order 18 Rule 7 of the Rules of the Supreme Court (Northern Ireland) 1980 and the Supreme Court Practice 1999, Volume 1 at paragraph 18/7/11, dealing with material facts which must be pleaded.  Mr Cush relied upon the decision of the Court of Appeal in Bruce v Odhams Press Limited [1936] 1 AER 287.  In that case the plaintiff complained that she was libelled by a newspaper article concerning certain aeroplane smuggling exploits of "an English woman" without naming her or describing her; on the defendant's application for particulars of the facts from which it was to be inferred that the plaintiff was the person referred to in the article, it was held that the defendants were entitled to the particulars sought by them (ie the special or connecting facts). 

            In the present case the specific or connecting facts are in fact pleaded in paragraph 4, sub-paragraphs A-E, of the statement of claim together with the classes of persons who allegedly would have identified the plaintiff as one of the solicitors referred to in the passage in the book.

            In footnote 96 to the passage set out above from Gatley on Libel and Slander it is stated that "whether the plaintiff must plead and identify particular individuals who understood the publication to refer to him, or whether he can rely on a case based on inference, will probably depend on the circumstances of the case"; the footnote refers to Fullam v Newcastle Chronicle and Journal Limited [1977] 1 WLR 651 and Grapelli v Derek Block [1981] 1 WLR 822.  In Fullam v Newcastle Chronicle and Journal Limited the plaintiff, who was a Roman Catholic priest, alleged that he had been libelled in an article imputing that he had fathered an illegitimate child whilst still a priest serving in a parish and that he had continued to serve as a priest after his subsequent marriage.  It was held by the Court of Appeal that since the cause of action was based on a legal or true innuendo in that only a reader with special knowledge of the facts, either of the date of the plaintiff's marriage or that of the birth of his child, could derive the alleged imputations from the article and it was not likely that readers with such special knowledge lived in the area of the newspaper circulation, the plaintiff in accordance with Order 18 Rule 7(1) and Order 82 Rule 3(1), had to plead that the relevant facts were known to some of the newspaper's readers and had to identify the readers whom he alleged knew those facts.  If the plaintiff relies on the natural meaning of the words (as in the present action), he must in his statement of claim specify the person or persons to whom they were published except in the case of a newspaper, periodical or book, which is published to the world at large, "when the persons are so numerous as to go without saying": Lord Denning MR at 655A.  Scarman LJ in the same case at page 659A-B stated:

 

                        "There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts.

 

                        For instance, the facts may be very well known in the area of the newspaper's distribution - in which event I think it would suffice to plead merely that the plaintiff would rely on inference that some of the newspaper's readers must have been aware of the facts which are said to give rise to the innuendo.  But that is not this case."

In Grapelli v Derek Block Dunne LJ agreed with Scarman LJ that where a  publication is in a national newspaper with a very wide circulation, the only reasonable inference is that some of the readers of that newspaper must have knowledge of the facts which are said to give rise to the innuendo: see page 830B. 

            In Mouammar v Bruner (1978) 84 DLR (3rd) 121, a case which is also referred to in footnote 96 to paragraph 26.25 in Gatley on Libel and Slander, 9th Edition, where the plaintiff alleged that members of the Canadian Arab community would identify him with the words complained of, it was held that it was not appropriate to order the plaintiff to identify specifically members of the general public who identified him with those words on the basis that, as there was a sufficient Arab population in Canada within the circulation of the defendant newspaper, it would be open to a jury to find that members of that community would reasonably associate the plaintiff with the words; see also the case of Gumina v Williams, an Australian case which is also referred to in footnote 96 and to which I refer later. 

            Mr Cush submits that the following dates are relevant in the present case: (1) As appears from the statement of claim "the supergrass trial" in question took place between June and December 1984, (2) the plaintiff at that time was either just qualified or about to qualify as a solicitor (3) the book in which the passage appears was published in January/February 1998.  Mr Cush submits that not many people would recall in January/February 1998 that the plaintiff was involved in that "supergrass trial" approximately 13½ years earlier.

            In Rice v Grant Publications Limited and Collins and McGovern (Campbell J, unreported June/July 1998) the first-named defendant published in 1997 a book entitled "Killing Rage", being an autobiography of the second defendant written by the third defendant.  The matter came before Campbell J by way of a preliminary issue as to whether the words complained of in an amended statement of claim were capable of bearing the meanings contended for by the plaintiff, who was a solicitor.  As appears from page 2 of the judgment of Campbell J, Eamon Collins, the second defendant, had appeared at Banbridge Magistrates' Court on 8 March 1985 charged with a number of terrorist offences, where he was represented by the plaintiff, Joseph Rice, who was a solicitor who was at that time in partnership with the late Mr Paddy McGrory.  The passage in the book which was the subject of the libel claim by the plaintiff included the following words, which were attributed to a police officer and were said to have been spoken by him to Eamon Collins at the court in Banbridge on 8 March 1985:

 

                        "Mr Paddy McGrory represents provos and that's why he's here.  Do you think he's here to act on your behalf?  He's not interested in you."

It was not disputed that these words read in isolation by someone, who knew that Mr Rice and not Mr McGrory was the solicitor who appeared for Mr Collins on that occasion, were capable of bearing the defamatory meanings relied upon by the plaintiff.  Mr Moloney who appeared on behalf of the defendants on the preliminary issue before Campbell J raised the issue of identification, with which issue Campbell J dealt at page 9 of his judgment as follows:

 

                        "Mr Moloney raised the further issue of identification.  Mr Rice appeared for Mr Collins at Banbridge Magistrates' Court twelve years before the book was published and he was named in press reports at that time.  He has named one person who was in court that day and read the book and identified Mr Rice.

 

                        Mr Moloney invited the court to require Mr Rice to provide particulars of the identity of any other person, of whom he is aware, who is able to make this connection and to make this a pre-condition of any leave to amend the statement of claim.  He said that all that was being asked was that if Mr Rice knew of people who, for example, had mentioned the matter to him, then he should disclose it.  It could be material not only on the issue of damages but also on that of liability."

Having referred to Fullam v Newcastle Chronicle and Journal Limited, Campbell J continued at page 10 of his judgment:

 

                        "Mr Morgan (who appeared on behalf of the plaintiff) replied that there were crowds outside the court, officials in the court and police officers present in the court who were not involved in the case of Mr Rice (sic) and that this is not a case of an isolated group such as Fullam.  In the amended statement of claim the name of Mr Gerard Trainor is given as that of a person to whom the words were published and it is said that at the time of pleading the plaintiff is unaware of the identity of each and every member of the legal profession who read the words complained of and understood them to refer to the plaintiff.

 

                        It will be argued at the trial that, due to the passage of time, the number of people who will recollect that Mr Rice appeared for Mr Collins at the court in Banbridge is likely to be small, but the name of Mr Trainor suggests that at least one person is in a position to do so and to make the connection so that the plaintiff can prove publication to a third party.

 

                        But this does not provide a complete answer because, as Scarman LJ said in Fullam, a plaintiff should particularise so that the defendants may understand the nature of the case that they have to meet, especially whether it is one which, if successful, would be likely to result in an award of substantial or trivial damages.  The defendants are entitled to know so that they may decide whether to defend or settle, or to pay into court and, if so, how much, and generally what course to follow.  In the particular circumstances of this case, where many years have past since the hearing in Banbridge, it is proper that the plaintiff should be required to give particulars of those known to him who have read the book and made the connection with him.  At this time only Mr Trainor has been identified but if others become known to the plaintiff as having made the connection, then particulars of their identity should be provided.  If such particulars are not given, it will be for the trial judge to decide if the plaintiff is to be allowed to call witnesses of whom particulars could have been given earlier."

            The consequence of making such an order for particulars is obvious, as stated by Lord Denning MR in Fullam v Newcastle Chronicle and Journal Limited [1977] 1 WLR 651 at 656G-H:

                        "I realise, of course, what this means.  When the defendants are given the names and addresses of the persons, their solicitors will be able to go and see them and enquire of them.  At one time it used to be thought improper for a solicitor to interview or take a statement from a person who had given a proof to the other side or was likely to be a witness for the other side.  But that idea has been dispelled. Neither side has any property in a witness.  There is nothing wrong in a witness giving a statement to both sides, if he is willing to do so.  But the first side should let him have a copy of it so that he should be able to confirm or correct it when telling it to the second side.  No witness would wish to give statements which were contradictory.  And any corrections should, of course, be notified to the first side.  Such a procedure would be most helpful in cases such as the present: for the good reason that it might help greatly to an early disposal of the case by settlement, or otherwise."

            Mr Lavery QC, who appeared with Mr Coyle on behalf of the plaintiff in this action, referred me to page 8 in my judgment (unreported 13 November 1998) in Turkington and others v Telegraph Group Limited where I stated:

 

                        "Although the plaintiffs were not mentioned by name in the letter as published on 19 August 1997, I am satisfied that some members of the public and not just members of the legal profession such as Mr Caher, a solicitor who gave evidence on behalf of the plaintiffs, would have been aware at the time of publication on 19 August 1997 that the plaintiffs had represented the two guardsmen as their solicitors on their trial and subsequent  unsuccessful appeals, including applications for judicial review, all of which had received considerable publicity in the media.  I am satisfied that the plaintiffs, although not named, were identified in the letter as published."

In that action no persons were named in the pleadings or particulars as having identified the plaintiffs with the offending letter in the Telegraph; no application, such as that made in the present action, was made on behalf of the defendant although it did serve a notice for particulars in relation to other matters arising out of the statement of claim.  In that action there had been ongoing publicity about the conviction of the two guardsmen over the intervening period of five years between their conviction and the publication of the offending letter.  In the present action, as in Rice v Grant Publications Limited and others, the passage of time has been much greater, 12 and 13½ years respectively, and there has not been the same constant media attention to this case in the intervening years.

            Mr Lavery referred to Gumina v Williams (1990) 3 WAR 351 at 344 where in the course of a reserved judgment at page 344, Commissioner Pullin QC stated:

 

                        "The defendant relies on the views expressed in Fullam v Newcastle Chronicle and Journal Limited and Grapelli v Derek Block Limited which are in general terms to the effect that if the facts identifying the plaintiff are not likely to be known to others other than a small section of the readers, then particulars should be given: see also Dawson (supra).  A court will not order particulars to be given of the facts which identify the plaintiff where it is obvious that a large number of readers will identify him, that is, the extrinsic facts `are of sufficient notoriety': CSBP case (at 9) citing Barbaro v Amalgamated Television Services (1985) 1 NSWLR 30 at 54, and see also Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188. 

 

                        As a result it can be seen that it is really a question of judgment as to whether particulars should be given in a particular case. 

 

                        The judgment I have formed about this case is that particulars should be given.  Some of the facts which are said to be known to certain readers and which are said to identify the plaintiff are generalised in nature.  It is hard to say exactly what persons or class of persons might, from those particulars, identify the plaintiff as the person referred to in the article.  The number or class might be very small.  In the end, it might not be possible to describe any class of persons, in which case the plaintiff will have to identify particular persons who understood the article to be referring to the plaintiff.  The fact that this will result in the disclosure of the names of witnesses is not a valid objection: see Lazarus v Deutsche Lufthansa AG (supra), at 191."

            Mr Lavery QC also referred me to the decision of the House of Lords in Morgan v Odhams Press Limited [1971] 1 WLR 1239. 

            Having regard to the considerable passage of time in the present action, approximately 13½ years, between the events in question and the publication of the defamatory material, I hold that the plaintiff should give particulars of the names of those persons who to date have identified the plaintiff as being one of the persons referred to in the offending passage in the book published by the defendant; if subsequently other such persons are identified or come forward, particulars of their identity should be provided to the defendant as soon as they are known.  I agree with Campbell J when he stated in Rice v Grant Publications Limited and Collins and McGovern that "if such particulars are not given, it will be for the trial judge to decide if the plaintiff is to be allowed to call witnesses of whom particulars could have been given earlier".  As already stated, the fact that this order will result in the disclosure to the defendant of the names of the witnesses to be called by the plaintiff on this point is not a reason in itself to refuse to make such an order in the circumstances of this case.

            Where the publication has been in a newspaper or book such particulars do not, in my opinion, have to be given save in exceptional cases, such as the present case or Rice's case, where there has been a long interval of time; there are and will be other exceptional cases eg where the readership is likely to have been extremely limited either by reason of very low circulation or publication in a foreign language which is unlikely to have been understood by many in the place of publication.  I respectfully agree with the statements made by Lord Denning MR and Scarman LJ in Fullam v Newcastle Chronicle and Journal Limited [1977] 1 WLR at 655A and 659A-B, to which I have referred earlier in this judgment.  There may also be cases where witnesses are reluctant or afraid to come forward, as having identified the plaintiff in the offending article but it is clear that there are likely to be some such persons, in which event particulars do not have to be given, nor do such persons necessarily have to be produced as witnesses on the trial of the action, although it may be prudent to do so, in order to succeed in the action.


                   IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                                  QUEEN'S BENCH DIVISION

 

                                                                    ------------

BETWEEN:

                                                    GREGORY McCARTNEY

                                                                                                                                       Plaintiff;

                                                                        and

                              LITTLE BROWN AND COMPANY (UK) LIMITED

                                                                                                                                   Defendant.

                                                                    ------------

 

                                                                JUDGMENT

 

                                                                         OF

 

                                                                     SHEIL J

 

                                                                    ------------