The Supreme Court dismissed Beverly Cooper-Flynn’s appeal in her case against RTÉ, Charlie Bird and James Howard, agreeing with the Chief Justice that the appeal should fail.
In a judgment delivered on 28 April 2004, Geoghegan J. addressed two grounds he considered arguable: the trial judge’s directions to the jury on majority verdicts, and the admission of a bank memorandum produced by a bank witness, Mr. Cooney. He said the other grounds were covered by the Chief Justice’s judgment and added nothing further on them.
Geoghegan J. said the trial judge had not correctly explained the rule in section 95 of the Courts of Justice Act 1924, as interpreted in the Supreme Court’s earlier decision in Arnott v. O’Keeffe. Where a jury answers several questions by majority, the same nine or more jurors must agree on all the answers for there to be a majority verdict. The jury had instead been told that jurors could be involved in different questions, with those who opposed the plaintiff on liability excluded from assessing damages.
The judge concluded that this misdirection did not require a new trial. The parties had accepted the way the issues were put to the jury, and the trial judge’s directions reflected an effort to prevent jurors who opposed the plaintiff on liability from reducing any damages. A retrial would set aside findings both for and against the plaintiff after a 29-day trial, which Geoghegan J. said would be unjust to the defendants, particularly Mr. Howard. He rejected this ground of appeal.
He also rejected the challenge to the bank memorandum. The document had been prepared by Mr. Cooney but never circulated, so it could not establish that the plaintiff knew its contents. The trial judge admitted it as evidence of practice in the bank division where the plaintiff worked. Because Mr. Cooney gave oral evidence and was available for cross-examination, and the memorandum was used to show the division’s practice rather than prove the truth of its contents, Geoghegan J. said its admission did not breach the hearsay rule. The jury could consider that practice alongside the other evidence when drawing reasonable inferences about the plaintiff’s possible awareness or participation.
Geoghegan J. noted some uncertainty about whether admitting evidence of the division’s practice was consistent with the trial judge’s general ruling that evidence about bank policy was inadmissible. He said that even if there was difficulty reconciling the rulings, it caused no injustice warranting a new trial. He also noted there had been no apparent objection to the memorandum being circulated among the jury before Mr. Cooney testified.