Have we any information about the Offences Against the State Act? Before the interruption we were arguing as to whether amendment No. 7 should not be applied where the word "State" first occurs in line 23.
Defamation Bill, 1961—Committee Stage (Resumed).
I have said all I want to say at this stage. Does the Parliamentary Secretary want to offer any view?
I just want to make it clear to the House exactly what we are doing in this whole matter. Section 19 is really only a repeat of the existing law with an extension to broadcasting. When the British came to pass their Act of 1952 they changed the situation with regard to reporting Court proceedings. Prior to the 1952 Act and under the 1888 Act there was no limitation as to where the courts were situated but when they came to pass the 1952 Act they stipulated that the protection would apply only to courts within the United Kingdom. What we are doing in our Bill is, as it were, following the British precedent in relation to our own situation. In regard to the absolute privilege that is involved here we are stipulating that a broadcast by an Irish station of reports of court proceedings either here or in Northern Ireland is absolutely privileged. The justification for that is, of course, that our courts are in a special position to us and we want to have regard to that special position and that special importance and in so far as a broadcast by an Irish station of these reports is concerned we afford them absolute privilege. It is a logical sequence, in view of the position here, to extend that to cover courts in Northern Ireland which are dealing with our own people also.
Then, when we come to courts outside the State and outside Northern Ireland we afford reports of those courts qualified privilege to the extent that if they are reported without malice by a newspaper or a broadcasting station in this country then they are absolutely privileged. I want to point out to the House that in this regard these reports come within the ambit of the First Part of the Second Schedule to the Bill, not the Second Part, so that they are privileged without explanation or apology. In other words, the qualified privilege is absolute.
Your heading to the Second Schedule is "Newspaper statements having qualified privilege."
We have two different sorts of qualified privilege. We divide these things into two Parts in the Second Schedule. We have Part I and Part II. The matters in Part I concern what I am calling absolute qualified privilege. In other words, they have privilege without reference to an explanation or contradiction, whereas the items in Part II have qualified privilege subject to their being prepared to publish an explanation or contradiction if necessary.
I think we are dealing with the matter very appropriately indeed. We give this absolute privilege to reports of our own court proceedings when the reports are broadcast by an Irish station and to any other courts when they are broadcast by an Irish station or published by an Irish newspaper subject to the qualified privilege.
That, of course, is not what the sections say. I want to talk only of absolute privilege which is given by Section 19. The privilege there, I was told before the interruption, was absolute privilege—no qualified privilege at all about it. Anything that occurs under Section 25 is a qualified privilege. This is absolute privilege. To what are we giving absolute privilege? We are giving absolute privilege to a fair and accurate report —that is the first condition—of any proceedings publicly heard before any court established by law and exercising judicial authority within the State or in Northern Ireland. It must be a fair and accurate report; it must be of judicial proceedings either here or in Northern Ireland. We give complete privilege to a report published in a newspaper and "newspaper" means a newspaper which is printed or published here or in Northern Ireland. When we come to broadcasting, the broadcasting is limited to "broadcasting by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the State"—only in the Twenty-six Counties. I cannot understand why, the overriding thing being a fair and accurate report and the second being judicial proceedings, we should extend the area of judicial proceedings. Deputy Sweetman's argument was different from mine. My argument is that if judicial proceedings are conducted here or in Northern Ireland and they are published in a newspaper printed and published here or in Northern Ireland that is all right, but when it comes to broadcasting absolute privilege attaches where it is broadcast from the station within the State. I do not understand what differentiation is being made.
I have given the reason.
I did not hear any reason that appealed to me. Deputy Sweetman has a different point, but let me limit myself to absolute privilege. As I say a newspaper report of judicial proceedings has complete privilege but we are limiting the privilege of the broadcast report only to such broadcast as occurs from our own station.
Why should that be?
I have explained it.
I have heard no explanation that appealed to me.
In this context Deputy McGilligan is concerned with the differential between Northern Ireland newspapers and the Northern Ireland broadcasting station.
No, the differential between broadcasting here and in Northern Ireland.
Deputy McGilligan's argument is that we are extending this privilege to newspapers which are printed and published in Northern Ireland, but that we do not extend to broadcasting stations in Northern Ireland the same privilege. He asks why do we differentiate between the newspapers printed and published in Northern Ireland and the broadcasts from Northern Ireland.
Newspaper publication in Northern Ireland of a broadcast from the north. That is not privileged.
A broadcasting station outside the State—it does not matter if it is in Northern Ireland, Great Britain or Honolulu—does not qualify for privilege under this section. The reason we are excluding the Northern Ireland broadcasting station is that Northern Ireland newspapers are Irish in the real sense of the word. The broadcasting stations as we understand are nothing more than extensions of the British broadcasting station. If we wanted to include a Northern Ireland broadcasting station we should be logical and include all British broadcasting stations, which we are not prepared to do. There is that simple logical consistency about what we are doing.
Let us take U.T.V. as an example. It has a sound broadcast. If that is not an Irish station am I to take it that the Belfast Evening Telegraph is an Irish newspaper?
By my standards, yes.
Controlled by Irish people? There is a tremendous amount of talk about it being taken over by the Thomson group. Are we told that the Belfast Evening Telegraph and the Northern Whig are Irish and that U.T.V. is not?
So far as I am concerned there is an essential difference between them.
Tell me what it is.
To my mind one is Irish and the other is not Irish.
The Belfast Evening Telegraph is an Irish newspaper?
If it does not agree with my view——
Leave our views out of it. Who owns it? The Thompson newspaper group? You might as well say the Daily Mail or the Daily Telegraph are Irish newspapers.
It is published in Ireland and run by Irishmen.
I wish the Parliamentary Secretary would say that in the vicinity of the Northern courts and he would get short shrift. In any event those are all accidental circumstances. I cannot see why we should say that newspaper reports of proceedings in court are privileged whether the newspaper is printed and published here or in Northern Ireland, and when it comes to broadcasting the privilege is limited to a report of proceedings within the State. I do not see the distinction.
I object to the section for another reason. Our broadcasting station is inferior to the station of U.T.V. and I.T.V. in the North.
I do not agree.
Yes, clearly it is.
Is this privilege intended to be absolute privilege?
Privilege is qualified elsewhere. Why should we not say "absolute privilege" or else define "privilege" as meaning absolute privilege unless where it is attended by a qualifying word?
That is not necessary. Privilege connotes absolute privilege. If you want it to mean something else you must qualify it accordingly.
May I take it that where the word "privilege" is used without qualification it means absolute privilege? Look at Section 25 in which there is only qualified privilege.
The difference between absolute and qualified privilege is malice.
That is what I have been saying.
The Parliamentary Secretary did not say unless it was made with malice.
This is a new section, is it not?
New and good.
It makes a change.
There is a change following on the 1952 Act.
May I point out that the slander need not be by way of trade or profession so long as it damages the plaintiff in his trade or profession?
To summarise it, if the slander affects the person professionally or in his business there is no necessity to prove such damage. That is a change from the 1952 Act and it is good.
For this praise much thanks.
It is like the curate's egg.
Subsection (2) of this section says that Section 15 of this Act shall apply for the purposes of the law of libel and slander. The English Act says that subsection (1) shall apply for the purposes of the section but we are limiting it to the purposes of subsection (1).
There is only the one subsection apart from subsection (2). It was just a matter of drafting it one way or another.
There is nothing in it then.
I move amendment No. 8:
To delete subsection (6) and substitute the following subsection:
"(6) Paragraph (b) of subsection (1) of this section shall not apply where the party aggrieved proves that he has suffered special damage."
The purpose of this amendment is to make it clear that the provision in the earlier part of the section will not operate in a case where special damage is proved. The amendment is to delete subsection (6) of this section. The advantage will be that the offer of amends will not be a defence where a plaintiff proves he has suffered pecuniary loss. The whole of Section 22 will accordingly not apply if a person can prove he suffered pecuniary loss.
If there is unintentional damage there is no punishment but there is a change in this amendment to say that subsection (1) of the section shall not apply where the party aggrieved proves he has suffered special damage.
As subsection (6) of the section stands at the moment, the section does not apply, where the party aggrieved has suffered special damages, to prevent the recovery of damages for that special damage. Under the new subsection the plaintiff will be able to recover full damages where he has suffered pecuniary loss.
But we have the word "special" in the amendment and not the word "pecuniary". Who says the person has only to prove he suffered pecuniary damage? What is the difference between this amendment and sub-section (6) as it stands? Sub-section (6) says "special damage". This amendment says "special damage".
The situation is more precise when we delete subsection (6) and insert the new subsection. The existing subsection merely states that the section shall not operate to prevent the recovery of damages for special damage. The new subsection stipulates that the section shall not apply at all where the party aggrieved has suffered special damage.
Really, I cannot understand it. What are we alleviating in these circumstances? What is the difference between the wording of the existing subsection and of the proposed new one? Is it in the word "proves"?
The existing sub-section means that the person aggrieved will recover only for the special damage but under the amendment he will be able to recover for the full damage.
What is the full damage except the special damage that has been suffered? First of all, the word "full" does not appear anywhere.
Is the Parliamentary Secretary making the case that the amendment is a clearer drafting of the original subsection?
No, it is fuller.
What difference does it make?
If the Parliamentary Secretary said the amendment was clearer I would agree with him because I do not know what the existing sub-section means.
The existing subsection says that where the party aggrieved has suffered special damage he will recover only for such special damage. The existing subsection is narrow in that respect. First of all the person must have suffered special damage and the operation of the section is confined to recovery for that special damage. The new subsection merely states that where the party aggrieved proves he has suffered special damage he can get full damages. Is that not clear?
It means, in effect, that if you have suffered special damage you can now get special damage plus punitive damage.
Under the existing provision if you suffer special damage you can recover for that special damage only, but under the proposed new subsection, if you suffer special damage the position is at large and you can get any damages to which you are entitled.
It is a pity the Parliamentary Secretary did not make it as clear as that at the beginning.
I tried to say that.
The Parliamentary Secretary did not say it until it was put into his mouth.
Because the Deputy was not listening to the Parliamentary Secretary.
I was listening to quite a lot.
But not enough.
I trust Deputy McGilligan is not suggesting it was he who put it into my mouth.
This is a peevishness we got from the Parliamentary Secretary earlier which has kept him here for two hours.
What is the effect of this Section?
I should have thought the meaning was clear from the words:
In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
If that is not crystal clear, even to Deputy McGilligan, I do not know what is.
At explaining, the Parliamentary Secretary is marvellous.
This is the old English Act adapted to broadcasting matters. It provides that the Broadcasting Station should be within the State in order to be privileged.
We are told it is to be absolute privilege unless made with malice. I always understood in the law of libel that the consideration of malice only arose in connection with qualified privilege.
That is what I said.
The Parliamentary Secretary said that wherever the word "privilege" was used, it meant absolute privilege.
"Privilege" is here.
But it is qualified. I said "When the word ‘privilege' is used without qualification." Where could you get a clearer qualification than the wording here "...shall be privileged unless the publication or broadcasting is proved to be made with malice"? In other words, it is only a qualified privilege.
"Privilege" in the definition given means absolute privilege. I read it as "...shall be absolutely privileged unless the publication or broadcasting is proved to be made with malice."
You do not have any consideration of malice arising?
You can take lines 40 and 41 to read "... shall be absolutely privileged unless the publication or broadcasting is proved to be made with malice." You have one situation privileged, which is absolute privilege. If a thing is absolutely privileged, unless you prove it is made with malice, it is no longer absolute privilege but qualified privilege.
The question of malice never arises in connection with absolute privilege.
That is exactly what this Section says.
It is not.
The side note says "Qualified Privilege." So it is qualified privilege?
It would be absolute privilege unless malice is proved, and then it is only qualified privilege.
There is no such thing known to the law as absolute privilege which can be countered by malice. There is absolute privilege which is complete. Qualified privilege is one which can be broken down by an allegation and a proof of malice.
The position is clear beyond question. If privilege means absolute privilege, then this section is nonsense and the privilege does not mean absolute privilege. What this section means is that there is qualified privilege, which can be thrown out if there is malice.
Nonsense? This section means precisely what it says— that these particular reports are absolutely privileged unless malice can be proved.
Why do you put in a side note to say "Qualified Privilege"?
Because it becomes qualified privilege.
You do not say that absolute privilege becomes qualified on a proof of malice. You say "Qualified Privilege" all the time, and qualified privilege can be upset by a proof of malice. As I understand the law, that is the situation.
The situation is that these particular things are absolutely privileged unless malice can be proved.
They are not.
They are, if words mean anything.
What does the Parliamentary Secretary mean by qualified privilege then?
I mean the type of situation in which malice is proved. It is then no longer absolute privilege but only qualified privilege.
Once malice is proved, you cannot have privilege at all.
There is still qualified privilege.
Once malice is proved there is no defence.
Right through the whole thing.
No, there is not. If the Parliamentary Secretary is right in that regard, it would be outrageous that we would give privilege to a malicious report. But the section does not do so. Does the Parliamentary Secretary realise what he is saying is that a person writing an article for a newspaper can deliberately and maliciously libel somebody and that the Parliamentary Secretary is providing privilege for that? Of course, he is not.
All I am saying is that these particular things are absolutely privileged until malice is proved. Then they are no longer absolutely privileged.
The fact is that the section is right and the Parliamentary Secretary is wrong.
The first subsection refers to the Second Schedule and the second subsection refers to Part II of the Second Schedule. What is the distinction?
The distinction is that the schedule is divided into two parts. Part I consists of a series of items to which, as I have already explained in detail, privilege applies without any question of an apology or explanation.
Yes, without any question of an explanation or apology. Part II consists of items which are privileged subject to the right of the plaintiff to demand an amendment or an explanation or apology.
I understand what is contained in the Second Schedule is something different. You put in the heading "Qualified Privilege" there?
Qualified privilege in so far as malice will defeat it.
There is no question of malice in the Second Schedule.
Unless the publication or broadcast is proved to be made with malice—subject to that in respect of these items in Part I of the Second Schedule—the plaintiff is absolutely free, whereas in Part II he can be called on to give an explanation or contradiction before he is entitled to the protection of Section 25.
That is purely a question of the burden of proof.
In the case of the first part of the Second Schedule, provided there is no malice, that ends the matter. But in the case of the second part, in regard to any of the items in the second part, they are only privileged if the publisher, having been asked to publish an explanation, has done so. If he refuses to publish an explanation, a correction or an apology, then he loses the protection he is afforded by Section 25.
Quite clearly the Parliamentary Secretary does not understand the difference between absolute privilege and qualified privilege. Anything said in this House is absolutely privileged and the introduction of malice cannot affect it. Anything in the first part of the Second Schedule is qualified privilege, because if malice is proved the "qualified" is ruled out.
Correct, the privilege goes.
It is not absolute privilege.
That is what I have been saying.
The Parliamentary Secretary has been saying it is absolute privilege subject to qualification, which is quite a different sort of privilege.
If there is no malice, it is absolute privilege.
Privilege is absolute or is qualified. There is no such thing as absolutely qualified or qualifiedly absolute. If it is absolute privilege malice does not enter into it. If you have qualified privilege and you prove there is malice, then there is no privilege at all.
Earlier on, I was saying, for want of a better term and in order to distinguish between the items in Part I and Part II of the Second Schedule, the items in Part I have qualified privilege absolutely whereas the items in Part II have only a restricted qualified privilege. By that I meant that the items in Part I had the qualified privilege without any qualification as to apology, correction or explanation, whereas the items in Part II only had that qualified privilege subject to explanation, apology or correction. It was in that sense that I distinguished between Part I and Part II. Part I had what I call absolute qualified privilege and Part II had merely qualified privilege.
There was another distinction made; statements in this House are absolutely privileged.
No matter what malice can be proved, there is absolute privilege.
Splendid, and there is plenty of malice around.
There sure is. The Parliamentary Secretary is adept at it.
Deputy Booth might go and read Focus. I believe he is on the editorial board. There was a good deal of malice in certain phrases that were used about the 1916 men in the journal called Focus, in connection with which publication Deputy Booth is on the editorial board. Statements made in this House are absolutely privileged and no question of malice can dislodge that position. Judicial statements are privileged absolutely and no question of malice arises. When one comes to qualified privilege, there is a certain protection in regard to people who speak or write in certain ways, but that can be dislodged if malice can be shown. There is a certain amount of confusion here about privilege that may be absolute but which can be removed from that category. The Second Schedule to which Section 25 refers has as a heading newspaper statements having qualified privilege, and that is the beginning and end of it.
Certainly, in respect of Part I, there are certain conditions.
Deputy McGilligan has now cleared everything up for us. You understand it all.
And the Parliamentary Secretary does not understand it at all. There are different conditions in one case and there are different conditions in the other case.
There is one matter to which reference was made earlier on in relation to another section, but I think it is apposite to bring the matter up again here. We are giving a certain amount of protection here to newspapers in relation to certain types of reports. There was a discussion as to the nature of that protection. It is a protection we give to newspapers published here and in Northern Ireland. I think we should be very clear that this protection is not given to newspapers published in England. We are now enacting a piece of legislation which will, in fact, discriminate in favour of Irish newspapers—newspapers published in Northern Ireland are included —as against newspapers published in England and elsewhere. I question whether that is a very wise thing to do. If, in fact, we have this right to give certain protection to Irish papers, I wonder would it not also be right to give similar protection to newspapers which may circulate here but which are printed elsewhere.
They do not give it to our papers. The British do not give these privileges to Irish newspapers circulating in Britain.
That is exactly the point to which I was coming. It seems to me that this is something which could easily be taken up between the two Governments in order to see if there could be some fair agreement as to the type of protection that will be given. It should be pointed out that it would be desirable if the type of protection which it is proposed to give to newspapers printed in this country were extended elsewhere. We all know there is a great deal of interchange in newspapers as between the two countries. Probably the flow is greater than it is out.
It seems to me it would be worthwhile for the Government to take the matter up with the British Government. There seems to be some principle involved. If it is just that this type of defence should be allowed—it is a section which should be enacted— I feel this protection should also be given to the proprietors of other newspapers whose papers may be circulating here. This particular type of qualified privilege is something which is long overdue. Justice demands that we should endeavour to extend it to newspapers published elsewhere and circulating here. Surely it should be possible to get a reciprocal agreement to protect our newspapers elsewhere.
I understood the Parliamentary Secretary to say there is no such reciprocity. Has the Parliamentary Secretary the Act of 1952? The Schedule says "In relation to the following countries and territories the provisions of the Schedule shall have effect in Her Majesty's Dominions" and the Republic of Ireland is included.
But not in this particular context.
I should like to find out why not. The Schedule to the British Act is the same as our Schedule and the Republic of Ireland is included in the interpretation section of the Schedule as if the Republic of Ireland were one of Her Majesty's Dominions. It is the last clause.
I have gone into this very carefully and I am quite satisfied that what we are doing here is exactly the same as the British did. Perhaps Deputy McGilligan would refer me to the precise section.
The interpretation section in the Schedule. It says the Act shall apply to various countries, including the Republic of Ireland. The Schedule applies holus bolus to this country.
I shall look into it, but I am quite satisfied the position is as I say.
It is a matter of some importance. The Parliamentary Secretary should look into it. This Schedule would indicate that, whilst the British have proceeded to legislate for themselves and the other countries listed in the Schedule, they have also given the protection of this qualified privilege to newspapers emanating from this country. If that is so, I do not think we should pass a piece of legislation which would discriminate against them. Perhaps the Parliamentary Secretary would look into it and let us know what the position is on the Report Stage.
I will certainly.
I am referring to Section 14 of Part III of the Schedule. It certainly lays it down that this applies to Her Majesty's Dominions, and the Republic of Ireland is included as if it were one of Her Majesty's dominions. I had a hurried look at this but I think the only difference between Section 7 of the English Act of 1952 and our Section 25 is that we bring in a reference to broadcasting.
I have marked out certain things in Section 25 as being different from Section 7 of the Act of 1952 but all my bracketed variations refer to broadcasting. I would like to be assured those are the only variations.
This is new also.
What is its purpose?
It is to deal with the fact that doubts have been expressed as to the validity of certain agreements to indemnify persons against libel. This Section makes such agreements lawful unless the party to be indemnified knows that the matter is defamatory and does not reasonably believe there is a good defence to any action brought.
That would put the onus of proof about a good defence on the person who——
As the Section says, "the person who does not reasonably believe there is a good defence."
The question of onus of proof would arise. It says here that an agreement to indemnify is not unlawful but may become unlawful if the person knows the matter is defamatory. On whom does the onus of proof lie that the person knows the matter is defamatory and does not reasonably believe there is a good defence?
I imagine the onus of proof would be on the defendant.
That is to say?
On the person endeavouring to establish the validity of the indemnifying agreement.
Agreement to indemnify.
If it could be established that the person knew——
Who is going to establish it? Is it for the person to establish that he did not know it was defamatory and believed it was a good defence or is it for the other people to prove the reverse?
It would depend on the circumstances. It would be up to the person endeavouring to upset the validity of the agreement to establish that the person knew that there was not a good defence.
Where does this come from? Is it a completely new thought?
I thought it up out of my head.
If the Parliamentary Secretary did will he tell me where he thought the onus should be?
Where I have said, on the person endeavouring to upset the agreement.
If that is so, it is impossible on the phraseology "reasonably believe" because nobody except the person himself would know whether he could reasonably believe, but if it is to be the other way around——
That is not so.
Yes. Only I can tell whether I reasonably believe. Somebody else can give evidence that I had not reason to believe but it does not say that. It says "reasonably believe" which is a different thing.
Surely I can establish that in these particular circumstances no reasonable person could believe so-and-so.
I think that is what the Parliamentary Secretary believes but that is not what the phraseology suggests.
I have such a high regard for Deputy Sweetman's opinion in these matters I will have another look at it.
The Parliamentary Secretary thought this up himself? It is word for word the same as the provision in the 1952 British Act.
It is another example of great minds arriving at similar conclusions. It happens all the time.
There is not a single variation from Section 11 of the 1952 Act. He had better think again.
This is new also, which again is to say it is copied from the 1952 Act. How does this section work out? It says evidence may be given in mitigation of damages which are to be sought by a plaintiff against the defendant.
I do not understand the question.
Look at the case in Britain during the past few weeks in regard to two publications issued by two different papers. Presumably there was the same phraseology. I would have thought on the ordinary reading of this section that when the second set of figures was being assessed the first set had to be taken into account. It does not seem to work that way. A sum of £100,000 was obtained from the Daily Telegraph and £117,000 from the second newspaper.
Is it not precisely to meet that point this section is put in?
Is that the way it is met?
It looks like it.
Mr. X and company took an action against the Daily Telegraph.
Deputy McGilligan ought to have advised them.
I could give them better advice than the Parliamentary Secretary. The plaintiffs got £100,000.
I do not know the facts of that case.
I am telling the Parliamentary Secretary.
I would have to have better evidence than that.
Then they took an action against the Daily Mail and got £117,000.
Was evidence given in the second case of the judgment in the first?
It was referred to. It did not matter to the jury. In one case they gave £75,000 and £25,000 to the individual and in the second case they gave £100,000 and £17,000 to the individual. In the second case reference was made to the fact that the same plaintiff and the same company had got £100,000.
Surely this section does not say the damages in a previous case shall be taken into account?
No. The defendant may give evidence in mitigation.
But it is open to the court——
It could also be that the two actions were going on at the same time, contemporaneously, and that it was not possible——
Contemporaneously in a sense. They were tried on different days, with about two days interval.
We shall get the facts.
The facts are as I am telling the Parliamentary Secretary.
I am not accepting that.
On the hypothesis it may be true under a libel law in England of 1952, that in regard to some section a plaintiff and his company recovered £100,000 against the Daily Telegraph and two days later got £117,000 from the Daily Mail, I want to know what is the purpose of the section copying the British section about mitigation of damages when it works out that way.
There could be several possible explanations of what happened in England.
The actions were founded on the same points. What was called the Fraud Squad in Scotland Yard was called to examine the affairs of a certain company——
Is the Deputy taking this from the newspaper reports?
In the second case there was reference made to the fact that damages were given in the first case.
Is the Deputy taking this from newspaper reports?
I am taking this from the law columns of the London Times.
That is a newspaper report.
Which is often authoritatively referred to. It is rather better than the Irish Press. It is quoted when there is no official report from it. Anyway the facts were there.
Was evidence given or was merely a reference made?
Counsel for the defendants made a reference which was agreed to by counsel for the plaintiff that in a previous action £100,000 had been given. It was before the courts so I am wondering what is the effect——
They might have awarded £200,000 otherwise.
It is in mitigation of damages; the same defamatory statement before the courts, not contemporaneous actions, tried with a laps of two days in between. Damages awarded in the first. Notwithstanding that the jury increased the damages in the second case. I do not know what the purpose of this is.
I thought it meant to refer to a quotation that was quoted as being an excerpt from another paper but I do not think it is now.
While it is a copy of the English section it is possible that with the experience which has been referred to by Deputy McGilligan, the wording of this section could be improved in order to bring about the desired effect. We use the expression "giving evidence in mitigation of damages." I wonder would it be more wise to consider using a different form of phraseology to permit a reference being made to the fact that damages had been recovered or sought if it were agreed between the parties? The phrase "giving evidence in mitigation" means presumably putting someone in the witness box to prove the fact which might actually be a notorious fact and it might be well to phrase the section in such a way as to permit an agreed statement to be read by counsel.
Another drafting amendment that may be considered is that it should be provided that this claim for mitigation of damages should be specifically pleaded in the defence. In some of the branches of the law of libel, it is specifically provided that a special plea must be put into the defence if mitigation of damages is claimed—for example, where an apology has been inserted. It seems to me that it might be desirable to put in a similar subsection requiring that this plea for mitigation of damages should be raised on the pleadings. I think of course if such a section is put in, there should be a saver put in for any extraordinary occurrence such as an action commencing after the pleadings had been closed in the first action. I think generally it might be desirable to have this section as fool-proof as possible. I anticipate that, as it stands at the moment, it may well raise a certain difficulty. This section may not be pleaded specially as a defence. The question may subsequently arise if a section can be relied on if it has not been specifically pleaded and while the arguments may arise both ways it should be our job to have the matter as clear as possible.
I would have thought it was perfectly clear. First with regard to the pleading, I should think the section could only be read to mean "may give evidence in mitigation". But I have not a full knowledge of the case that took place in Britain. It could be that the jury in the second case were prepared to award £200,000 and mitigated it to the amount awarded. I do not know. I would have to find out more about it. But I am certainly always prepared to accept the suggestion that we should have a look at it again with a view to making it clearer if possible. I would have thought it was absolutely clear but, once a suggestion has been made that it is not, I shall be glad to re-examine it.
It is proposed to delete Section 28 because of the Civil Liability Bill which has been through Special Committee. Report Stage will, we hope, be taken to-night. The Civil Liability Bill provides for this matter in a better fashion. The 1888 Act section is unsatisfactory and difficult to interpret.
Is it not better to have all the law in relation to defamation in the one place?
Yes, but on the other hand, I think it is better to have all the law in relation to contribution in the one place too.
This Section 28 is I think in the 1952 British Bill. A thing I do not understand at all is what is intended to be the difference in the law of defamation between the provisions of Section 27 and Section 28. It seems to me that in relation to the law of defamation the appropriate way, for example, of putting the case we were discussing before would have been under Section 28—under Consolidation. The position in respect of Section 27 would take into account all the facts where the wording was slightly different. I do not quite understand what the difference is. The Parliamentary Secretary is taking it out here purely because he prefers to have it in the Civil Liability Bill but, when he is having his second look at Section 27, he will want to have a second look at Section 27 in the light of the contribution provisions of the Civil Liability Bill.
I shall certainly do that.
What section of the Civil Liability Bill deals with this?
Section 11 subsection (4).
It cannot be Section 11 (4).
It may have been Section 11 (4) in the original text.
I think the text as altered in Committee changed subsections.
Section 11 (4) of the Civil Liability Bill says:
Where there is a joint libel in circumstances normally protected by the defences of qualified privilege or fair comment upon a matter of public interest, the malice of one person shall not defeat the defence for the other, unless that other is vicariously liable for the malice of the first.
That has a bearing on it too. Subsection (5) deals with the case where there is the same or substantially the same libel or slander or injurious falsehood published by different persons.
That is a different point.
Subsection (4) of Section 11 says:
Where there is a joint libel in circumstances normally protected by the defences of qualified privilege or fair comment upon a matter of public interest, the malice of one person shall not defeat the defence for the other, unless that other is vicariously liable for the malice of the first.
That subsection deals with vicarious liability but subsection (5) says that where the same or substantially the same libel or slander or injurious falsehood is published by different persons, the court shall take into consideration the extent to which it is probable that the statement in question was published directly or indirectly to the same persons. That has nothing to do with the consolidation of actions. What we are discussing is Section 28, the side heading of which says:
Consolidation of actions.
[Re-enactment with extension of 1888 (c. 64) s. 5]
The section provides that upon an application by or on behalf of two or more defendants the actions may be consolidated and that the jury shall assess the whole amount of the damages in one sum. That is very different from Section 11.
This is a re-enactment with extension of Section 5 of the 1888 Act which we are repealing, so that there will be nothing there then dealing specifically with it and it does not seem to be covered by the subsections suggested by the Parliamentary Secretary. I would think, in any event, that it would be advisable to have it in this Defamation Bill. There is a special clause in the Civil Liability Bill dealing with libel and slander. It would be much better to have it in the Defamation Bill.
And take it out of the Civil Liability Bill.
Section 11 of the Civil Liability Bill deals generally with concurrent wrong-doers. I think this matter is more appropriate in the Civil Liability Bill, which deals with the whole question of concurrent wrong.
Yes, but this is one particular aspect of defamation more than one particular aspect of concurrent wrong-doing.
I must confess I cannot see any relationship between Section 11 and this Section 28.
Section 11, subsection (5), in the latest text.
I am taking Section 11 as a whole. Section 28 specifically refers to two or more defendants in actions in respect of the same or substantially the same libel or slander. On their application, the court makes an order to consolidate the actions and have them tried together and then the defendants in any new actions instituted in respect of the same or substantially the same cause of action shall also be entitled to be joined in a common action upon a joint application being made. Then under subsection (2), in a consolidatec action under the section, the jury shall assess the whole amount of the damages in one sum and then there is a way of splitting it up. Section 11 of the Civil Liability Bill has nothing to do with that.
There are two points here that have to be considered. The first is that it does seem to me that Section 28 of the Bill we are discussing is something which is not covered, as the Parliamentary Secretary suggests it is covered, by Section 11 of the Civil Liability Bill. It may be covered indeed—I have not gone into detail—in the various sections in the Civil Liability Bill but it certainly does not appear to be covered by either subsection (4) or subsection (5) of Section 11 of the Civil Liability Bill.
In any event, it seems to me to be desirable to have it in this Bill just as it seems to me to be desirable to have in this Bill subsections (4) and (5) of Section 11 of the Civil Liability Bill. These are two matters that are dealing with libel and slander specifically in the Civil Liability Bill and we are trying—which is a very desirable aim— to have a Consolidated Bill dealing with libel and slander. Here is a certain aspect of it in regard to which already we are starting to branch out into separate pieces of legislation.
I would suggest to the Parliamentary Secretary that, first of all, subsections (4) and (5) of Section 11 of the Civil Liability Bill be brought into this Bill and, if necessary, re-enacted, but also that he consider again whether, in fact, by knocking out Section 28, as it is proposed, he is doing away with something which was considered desirable when the Bill was drafted and has not replaced it by a suitable provision in the Civil Liability Bill.
It is a moot point as to whether or not the provisions of Section 11 subsections (4) and (5) of the Civil Liability Bill should not be included in this Bill. Admittedly, they deal with libel. On the other hand, they deal with concurrent libel and the Civil Liability Bill sets out to codify and amend the law with regard to concurrent wrong-doers generally. From that point of view, the provisions should be included in the Civil Liability Bill. On the other hand, as they are dealing with libel, I suppose there is an argument for putting them in this Bill.
Is there anything against putting it in both Bills—re-enacting it twice? Is there any drafting difficulty in that?
I think it should be in either one or the other.
Is not the libel the paramount question rather than the joint part of it?
Again, that is arguable. Section 11 subsection (5) of the Civil Liability Bill enables the court in this sort of case, where the same or substantially the same libel or slander or injurious falsehood is published by different persons, to take into consideration the extent to which it is probable that the statement in question was published to the same persons and to that extent may find the wrong-doers to be concurrent wrongdoers. The other provisions of the Civil Liability Bill in relation to such wrong-doers then come into play.
Would not that be a good argument for knocking out Section 27 as well?
I must admit it is impinging a bit on the same point.
When you are impinging on so much there, is it not better to have it all related to defamation? Apart from that, subsections (4) and (5) of Section 11 of the Civil Liability Bill do not provide for consolidation. They provide, as I understand it, only for the assessment.
Contribution is there as well.
For contribution, I mean. They do not provide for consolidation.
Not for the consolidation of the actions.
Does the Parliamentary Secretary not think it is a good thing that there should be provision for consolidation? I think the Parliamentary Secretary was right as it was originally drafted. There is no provision that I can find in the Civil Liability Bill for consolidation of actions of this sort.
There is a general provision for consolidation.
Of this sort?
Of actions generally.
I do not think that two different libels published in respect of the same theme, shall I say, necessarily cover concurrent wrong-doers. There is, of course, in the Civil Liability Bill, a provision for consolidation of actions in the case of concurrent wrong-doers but not, I think, in libel.
Section 11, subsection (5), is as follows:
Where the same or substantially the same libel or slander or injurious falsehood is published by different persons, the court shall take into consideration the extent to which it is probable that the statement in question was published directly or indirectly to the same persons, and to that extent may find the wrong-doers to be concurrent wrong-doers.
The more I look at Section 28 of this Bill, and the more I look at subsections (4) and (5) of the Civil Liability Bill, the more I am convinced that it would be desirable to keep this section in this Bill.
Is it not going to be very difficult for the Court to find under subsection (5) of Section 11 of the Civil Liability Bill "the wrongdoers to be concurrent wrongdoers" until the action has been at least partly tried? Then it is too late to have consolidation.
In 1888 there were no Rules of Court in the matter and the 1888 Act accordingly provided for the consolidation of actions. There are Rules of Court now and to that extent the need for Section 28 is obviated. It seems to be more appropriate to deal with this question of apportionment between the concurrent libellers in the Civil Liability Bill, but it is arguable.
As a matter of procedure would it not be simpler? If there were a situation in which a defendant applied to have the action consolidated with one trial and one verdict, would it not be simpler under Section 28? In a consolidated action under Section 28 the jury can assess the damages and apportion them between A, B, and C. That is a far better procedure.
You do not need Section 28 to consolidate actions. Section 28 can go and an action can be consolidated under the Rules of Court. The section is not necessary.
I do not believe that is right.
It is right.
As I understand the position, and I speak very much subject to correction, the question of consolidation of actions arose as a result of the rules which were passed in the Act of 1905. Certain limited powers to consolidate were given, but in respect of that power to consolidate there were special powers given in respect of libel and slander. I have not got the High Court Rules with me but it seems to me that the power here which is being given in Section 28 covers other matters than the matters that are covered by the High Court Rules. I think it is very desirable to have those other matters covered by legislation, and I think we should keep it in the Bill and not depend, as we are depending now, on the very limited powers in the High Court Rules.
The original Section 5 was put in the 1888 Act because there were no High Court Rules. I think this is a matter more appropriate to the Rules of Court. I think that will be generally agreed. From that point of view we do not need Section 28. In addition it is unsatisfactory. Any question of apportionment can more appropriately and adequately be dealt with in the Civil Liability Bill.
May I say that the Parliamentary Secretary is now changing his defence? He said we should delete Section 28 because it is covered by the Civil Liability Bill and now it looks as if he thinks it is covered by the High Court Rules.
The content of Section 28 which it is necessary to maintain will be preserved by the Civil Liability Bill. The other aspects go in as Rules of Court.
In fact his position now is that it is now covered in two different places. Are we to look at the Defamation Bill, which is supposed to be a consolidated measure, and find that in fact it is not, and that we have to go to the Civil Liability Bill and if we find that the situation is not covered there, we go to the High Court Rules? We would then have to study the three documents together to find out how to consolidate an action. I think it would be better to leave it in this Bill.
I have not got the Rules here but I understand that in relation to consolidation the Court had power in the Rules of Court to consolidate an action arising out of some act. I use the word "act" in the physical practical sense. Two different publications about the same thing in two different newspapers, for example, are not the same act.
Subsection (1) says:
For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.
That is the same act.
It is not
That is two or more actions in respect of the same material that is defamatory published in two different places.
I do not think so. I think the Parliamentary Secretary is reading subsection (1) as if it is in respect of the same or substantially the same publication of the same libel or slander. It means the same libel or slander, that is the material and two different publications of the same material. I do not think two different publications of the same material can be consolidated under the Rules of Court because it is not the same act.
In any event in 1952 the English legislating body decided to put in Section 13 which really was Section 5 of the 1888 Act. The Section reads:
Section five of the Law of Libel Amendment Act, 1888 which provides for the consolidation, on the application of the defendants, of two or more actions for libel by the same plaintiff shall apply to actions for slander and to actions for slander of title, slander of goods or other malicious falsehood as it applies to actions for libel.
I take it that means that under the 1888 Act there was statutory power to get a consolidated action in connection with libel uttered by different persons, but there was not power to get a consolidated action in respect of slander. I am not very sure of their Rules of Court but they are probably not very different from ours. They have made substantial progress and we are making substantial progress in Section 28. I think it should be kept.
Would the Parliamentary Secretary have a look at it between now and Report Stage?
I do not mind looking into the consolidation part of it, but——
Would it be better to keep the section in and delete it later, if necessary?
I suggest that we delete it now and it can be reinserted later, if necessary.
It is ex abundanti cautelae that we want to keep it in.
In relation to this section, I am rather inclined to feel that when a newspaper that is printed outside the State is circulated in the State—I avoid the word "published" deliberately—the State ought to have nominated a person to be responsible at least for the service of notice of proceedings in the way a person is nominated by a company whose headquarters are outside the State. I think it is unnecessary and wasteful to have a continuous list of applications for leave to serve outside the jurisdiction in the matter of a paper printed outside but circulated here.
When the whole question of newspapers is being considered, would it not be better that the circulation of a newspaper, which is a monthly or less, in general circulation here, should be treated something akin to the provision in the Companies Act? At the moment I cannot remember the section of that Act which deals with that matter but there is a system there under which any foreign country which carries on business here must name a person within the State on whom proceedings can be served. This section refers to a place of business and my suggestion is that there should be not only a place of business but the act of carrying on business.
It may be worth looking into.
In respect of subsection (3), is it the intention here to do anything more than to modernise the definition in the 1881 Act because in that Act we are referred in the margin of sections 2 and 29 to the definition that a paper is "a newspaper containing public news intelligence, remarks and observations there in." Is this intended to be more or less than merely a modernising of that wording?
We knocked out the word "intelligence".
Because it covered the Irish Press.
There are certain matters which were raised during the debate which will have to be thought over and from which amendments may result. Will those amendments, if any, be circulated early?
If there are any they will be circulated before the week-end. They should be in Saturday morning's post.