The Supreme Court dismissed Beverly Cooper-Flynn’s appeal in a defamation case against Radio Telefís Éireann, Charlie Bird and James Howard. In a judgment delivered on 28 April 2004, Justice Nuala McGuinness agreed with Chief Justice Ronan Keane that the appeal should be dismissed and addressed Cooper-Flynn’s challenge to the trial judge’s directions on majority verdicts.
At trial, the jury was asked whether the defendants had proved that Cooper-Flynn induced Howard to evade tax, whether she advised or encouraged other people to evade tax, and whether the publications about Howard materially injured her reputation. The jury answered “no” to the first question, “yes” to the second and “no” to the third. After discussion with the trial judge, it also answered a damages question by awarding no general or aggravated damages.
The appeal argued, among other things, that the jury had not been properly directed about majority voting and which jurors could decide later questions. McGuinness noted that Cooper-Flynn’s counsel had accepted the trial judge’s directions during the trial, and neither side had raised a complaint of unfairness on this ground before the jury retired.
The judgment considered section 95 of the Courts of Justice Act 1924 and the Supreme Court’s earlier ruling in *Arnott v O’Keeffe*. That authority requires at least nine jurors to agree on all answers that together make up a verdict. McGuinness concluded that the trial judge’s rulings were not in accordance with that law. She distinguished the questions in this case from those in *Arnott*, which concerned responsibility for a single road accident: here, the questions about Howard and four other witnesses concerned separate evidence, so jurors could reasonably reach different conclusions on them.
McGuinness said the trial judge’s concern that jurors who found against Cooper-Flynn on liability should not assess damages could not be faulted. She described the direction allowing all 12 jurors to decide the question about reputational injury as more difficult, but noted that counsel for Cooper-Flynn and RTE had accepted it. The court could not know whether any question had been decided unanimously or by a majority.
Despite the misdirection, McGuinness concluded that no “substantial wrong or miscarriage” had been occasioned, as required for a new trial under Order 58, rule 7(2) of the Rules of the Superior Courts. The majority-verdict ground therefore failed, and the appeal was dismissed.