A Supreme Court judge said a defamation case brought by Martin McDonagh against Sunday Newspapers Limited should be sent for a complete retrial because the jury left unanswered a question about the newspaper’s justification defence.
In a judgment dated 27 July 2017, John MacMenamin J said he would not answer the omitted question himself or assess damages on appeal. He considered those matters to involve factual judgments for a jury. His was a separate view in the Supreme Court appeal; the judgment records that the majority took a different course, assuming an answer to Question 2 and substituting an award of damages.
The jury had answered Question 1, left Question 2 blank, then answered Question 3 and awarded McDonagh €900,000. Question 2 concerned section 22 of the Defamation Act 1961, which allows a defendant’s justification defence to succeed in part if unproven words do not materially injure the plaintiff’s reputation when considered alongside charges proved true.
MacMenamin J said it was not possible to know whether the jury thought Question 2 did not need an answer, misunderstood it or overlooked it. In his view, the questions on the issue paper were interdependent. The omission meant the court could not establish that the jury had considered an essential part of the defence, so the verdict was “irretrievably flawed, and unlawful”.
The judgment says the action concerned a newspaper article that described McDonagh as “King Rat” and included allegations of drug dealing and loan sharking. It also records that McDonagh claimed the article characterised him as a criminal and a tax cheat. The judge noted that McDonagh’s previous convictions had been agreed by counsel, while McDonagh denied in evidence that some related to him. The judgment does not resolve the underlying allegations.
MacMenamin J said every member of the Court accepted the €900,000 award was too high, but he considered the appropriate response to the unanswered question was a retrial rather than a substituted award. He said damages depended on matters including the effect of the publication and the jury’s assessment of the evidence and witness credibility. He also noted competing considerations in the record: McDonagh’s evidence that he was shunned locally and barred from pubs, and the newspaper’s case that his account lacked credibility.
He would have remitted the entire matter for a new trial before a judge and jury. This judgment sets out MacMenamin J’s proposed disposition; it does not state that the Court ordered a retrial.