The High Court refused an application by Paudie Coffey to discharge the jury in his defamation action against Iconic Newspapers Ltd, trading as The Kilkenny People, and Sam Matthews. The ruling, delivered by Mr Justice Bernard J. Barton on 30 November 2018, left the trial to proceed; it did not decide whether the article was defamatory or determine the underlying claim.
The application followed the close of Coffey’s case, when the defendants opened their case to the jury. Their counsel referred to a press release dated 8 January 2016, drafted by public relations consultant Neans McSweeney on behalf of John Paul Phelan TD and emailed to the newspaper’s deputy editor, Sean Keane. The release was referred to and used in the article at the centre of the proceedings. The defendants said they intended to call McSweeney to give evidence about the intention behind it.
Coffey’s counsel sought to have the jury discharged on two grounds: that the defendants’ counsel had repeatedly breached a ruling limiting evidence about meaning, and that telling the jury McSweeney would testify about intention had prejudiced them because the evidence went to the article’s meaning. The defendants opposed the application.
The judge distinguished the objective question of what the article’s words meant from intention, which may be relevant to malice. He also considered the defendants’ stated intention to rely on section 35 of the Civil Liability Act 1961. If the article were found defamatory, that provision could allow the jury to apportion fault to Phelan as an alleged concurrent wrongdoer and affect any damages. No proceedings had been brought against Phelan, and the judgment said a new claim would face a limitation defence.
The court observed that the defendants were responsible for how the press release was presented in the article, including its headline and the accompanying photograph. It said that, if the case reached those questions, a jury could consider whether the defendants’ presentation showed malice even if it found no malice by Phelan. Those were possible issues for the jury, not findings made in this ruling.
Justice Barton concluded that evidence about intention was admissible in the context of the pleaded defences. Reviewing the transcript, he did not accept that the complained-of interventions amounted to persistent breaches of the court’s rulings. He found nothing in the cross-examination or the proposed evidence that created prejudice making a fair trial impossible, and refused to discharge the jury. The trial was to continue.