Gilchrist v Sunday Newspapers Ltd & ors Rogers v Sunday Newspapers Ltd & ors : Judgments & Determinations : Courts Service of Ireland

Factual and Procedural Background

The appeals arise from two defamation proceedings initiated by Plaintiff 1, a former police officer involved in the State's Witness Protection Programme (WPP), and Plaintiff 2, a psychotherapist retained in connection with the WPP. Both plaintiffs commenced separate actions against Company A, its editor, and a journalist, claiming damages for defamatory articles published in June 2013. The defendants/appellants sought orders under section 14(1)(a) and (b) of the Defamation Act 2009 to determine whether the imputations pleaded by the plaintiffs were reasonably capable of being borne by the article published on 16th June 2013. The High Court refused the defendants' applications, leading to the present appeals.

Legal Issues Presented

1. Whether the High Court erred in law by considering the content and "get up" of an earlier article published on 9th June 2013 when determining the meanings reasonably capable of being borne by the article of 16th June 2013.
2. Whether, when considered in isolation, the article of 16th June 2013 is reasonably capable of bearing the defamatory imputations pleaded by the plaintiffs.

Arguments of the Parties

Defendants' Arguments

• The High Court judge erred by considering the earlier article of 9th June 2013 when assessing the meanings of the 16th June article, as it is not reasonable to assume that the reader would have read or remembered the earlier article sufficiently to inform their understanding of the later publication.
• The article of 16th June 2013 merely suggested suspicion or investigation, not guilt, and the reasonable reader would distinguish between allegations of being under investigation and actual wrongdoing.
• Reliance on precedents concerning identification (e.g., Bradley v. Independent Star Newspapers and Hayward v. Thompson) is misplaced because those cases relate solely to identification, not meaning.
• The article’s lack of clarity about the nature or existence of any investigation is irrelevant to the determination of whether the imputations pleaded are sustainable.
• If the earlier article is excluded, the 16th June article alone is not reasonably capable of bearing the defamatory meanings pleaded.

Plaintiffs' Arguments

• The trial judge was correct to consider the earlier article as part of the context and "get up" for the 16th June article since the two articles are closely connected and the latter explicitly refers to the former.
• Precedents such as Travers v. Sunday Newspapers Ltd and Galloway v. Telegraph Group Ltd support the approach of considering the overall impression created by multiple related publications.
• The 9th June article remains accessible online, reinforcing its relevance to the meaning of the 16th June article.
• The imputations pleaded are not merely of suspicion but assert actual wrongdoing, and the jury should decide whether the meanings are reasonably capable of being borne by the publication.
• Cases cited by defendants involving actual investigations (Lewis v. Daily Telegraph and Griffin v. Sunday Newspapers) are distinguishable as no such investigations existed here.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified two central issues: first, whether it was lawful to consider the earlier article of 9th June 2013 when determining the meaning of the 16th June article; second, whether the 16th June article alone was capable of bearing the defamatory imputations pleaded. The court concluded that the High Court erred in law by treating the earlier article as part of the context for the later article’s meaning. The articles were published a week apart, with no indication that they were part of a serialised story or closely connected publications, and thus it was not reasonable to assume the reader would remember or consult the earlier article when reading the later one.

Relying on established legal principles and precedent, the court emphasized that a plaintiff may rely on multiple articles for identification purposes but not to expand or alter the meaning of a separate later publication. The court applied the guidance from Lewis v. Daily Telegraph, which draws a clear distinction between an article reporting suspicion or investigation and one imputing guilt. The 16th June article repeatedly referred to investigations and allegations, leaving the reasonable reader suspicious but not concluding guilt. The court found that only an unduly suspicious reader would construe the article as imputing actual wrongdoing.

The court further noted that the High Court judge’s reliance on the unclear nature of the investigations mentioned in the articles was legally irrelevant as the plaintiffs did not plead defamation based on reporting of investigations or suspicions but rather on imputations of guilt. The court thus determined that the 16th June article, considered in isolation and applying the correct legal test, was not reasonably capable of bearing the defamatory meanings pleaded.

Holding and Implications

The appeals by the defendants/appellants are allowed.

The court held that the High Court erred in law by considering the earlier article of 9th June 2013 in determining the meaning of the 16th June 2013 article. Upon de novo consideration, the court found that the 16th June article alone was not reasonably capable of bearing the defamatory imputations pleaded by the plaintiffs. Consequently, the defendants’ applications under section 14(1) of the Defamation Act 2009 should have been granted.

The direct effect of this decision is to permit the defendants to strike out the pleaded meanings in relation to the 16th June article. The court did not establish any new precedent beyond affirming established principles regarding the contextual limits of meaning in defamation and the distinction between suspicion and guilt. The separate defamation claims relating to the 9th June article remain unaffected and will proceed to trial.