The Court of Appeal has dismissed appeals by John Dempsey and Stephen Loftus against jury verdicts rejecting their defamation claims over leaflets delivered to neighbours in May 2016. The court held that the jury’s finding on publication was not perverse and declined to order a retrial.
The two claims were heard together in the High Court. The jury found that the leaflets prepared by Joseph Barrett were defamatory, but answered “no” when asked whether Barrett had published them. Publication was an essential element of the claims, so the jury did not need to decide whether the contents were true or assess damages. The High Court dismissed the claims.
The leaflets accused the plaintiffs of being bankrupt and described them as “partners in crime” and engaging in “white collar crime”. Neighbours testified that they had received copies through their letterboxes. No witness saw who delivered them. The plaintiffs relied on Barrett’s earlier distribution of a similarly worded leaflet to Loftus’s work colleagues, his messages threatening to leaflet the neighbourhood, and other surrounding evidence.
Barrett denied distributing the leaflets to the neighbours. He testified that he had put one in Dempsey’s letterbox, but no others that day, and suggested Dempsey might have distributed them himself. The plaintiffs disputed that suggestion. The Court of Appeal noted that the evidence pointing to Barrett was circumstantial, while his denial was direct testimony for the jury to assess.
The plaintiffs argued that the evidence could only support a finding that Barrett had distributed the leaflets. The court applied the demanding approach to jury findings set out by the Supreme Court in *McDonagh v Sunday Newspapers Ltd*: an appeal court may interfere where the evidence points only one way, but it cannot replace the jury’s assessment simply because another conclusion seems more likely.
The appeal court said the evidence may have strongly favoured the plaintiffs, but it did not point only in one direction. The jury could rationally have found that the plaintiffs had not proved Barrett was responsible, without necessarily accepting his claim that Dempsey distributed the leaflets. The court therefore dismissed both appeals. It did not decide the truth or damages issues, which the jury had not reached.