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Magee v. M.G.N. Ltd. [2003] IEHC 87 (14 November 2003)

 


THE HIGH COURT

Rec. No. 2001 12443p

BETWEEN

PATRICK MAGEE

PLAINTIFF

AND

M.G.N. LIMITED

DEFENDANT

Judgment of Mr. Justice William M. McKechnie delivered the 14^th day of November, 2003.

1. In this action for libel the plaintiff alleges that on the 11^th July, 1999, in a newspaper entitled "The Sunday Mirror" the defendant, as part of a number of articles, falsely and maliciously published certain words which, in their context, including a photograph of Mr. Gerry Adams and Mr. Magee, were defamatory of him.
2. The words complained of, under the heading;-

"Terror dossier sensation.

I'll kill Adams:

Chilling vow by IRA Brighton Bomber Magee"

which are set out in the appendix to the statement of claim are as follows:

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"APPENDIX

IRA master bomber, Patrick "Mad Dog" Magee has threatened to kill Gerry Adams for "surrendering" to the peace process ……

As republican leaders negotiated a peace deal, Magee mocked the ceasefire saying

'The Brits only understand bombs' …..

Some terrorists released under the Good Friday Agreement, like Magee, are still dedicated to the bomb and bullet …..

Even as his political brothers battled for peace, Patrick Magee and his fellow terrorists housed in the Belmarsh's Secure Segregation Unit continued to wage their war of violence …..

The sensational leaked dossier shows Magee's arrogant defiance and will confirm Ulster Unionists' distrust as they seek a new peace deal on the disarmament issue …..

Described as a man of exceptional cruelty and inhumanity, he was freed last month …..

Another section details how Magee appeared frustrated as the peace plans were negotiated. In an entry dated June 12^th 1996 a prison officer wrote 'Magee seems agitated about the peace talks taking place'. Said to PO ****** (a prison officer)

'You're a soldier like me but on the other side. How would you feel if your leaders surrendered after you had risked all for them …… '

On the same day Magee was reported for threatening a prison Officer. Magee threatened officer ****** over exercise. Later he stated to PO ****** 'I always carry out my promises. If I ever get out I'll finish the job whatever

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Adams says' …. Wife said she was being pressurised by [them] for Magee to end the dirty protest' (This seems to show how isolated from the other IRA prisoners he has become ……)

He complained about the cowardly bastards who have lost their way …..

Later that year he threatened another prison officer, apparently warning him 'When the boys back home hear what's going on they will use Ak 47s to shoot the prison officers …..'

…he states 'there will be a ceasefire.' He does not agree. And he wrote 'the only thing the Brits understand is bombs….. '

Magee was locked up at Belmarsh after an escape attempt with fellow I.R.A. inmate….

Later officers reported 'Magee heard about a bomb incident in Tyrone, Magee said Adams had been against it and had now lost control. They seemed happy about this news …..'

Magee and all members of the IRA bombing gangs were placed under round the clock scrutiny and had their phonecalls tapped."

3. It is claimed that these words in their ordinary and natural meaning and/or by implication and/or by innuendo meant and were understood to mean the following:-

(a) That plaintiff was opposed to the Northern Ireland Peace Process and had voiced objections to same.

(b) That the plaintiff had threatened to kill and or harm Mr. Gerry Adams.

(c) That the plaintiff was attempting to undermine the Peace Process.

(d) That the plaintiff had intimidated and/or intended to intimidate Mr. Gerry Adams so as to undermine his efforts in the Peace Process and obstruct same.

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(e) That the plaintiff had mocked the Peace Process.

(f) That the plaintiff had stated that bombs and violence were the only way to deal with the British.

(g) That the plaintiff had stated that the British only understood bombs.

(h) That the plaintiff intended to use violence against the British during the Peace Process.

(i) That the plaintiff was dedicated to the use of violence and weapons and bombs following his release from prison pursuant to the Good Friday Agreement.

(j) That the plaintiff should not have been released from prison.

(k) That whilst his colleagues or political allies within the Republican Movement were promoting peace the plaintiff continued and encouraged a campaign of violence.

(l) That the plaintiff attempted to obstruct the Peace Process.

(m) That the plaintiff was dangerous and in particular a danger to the Peace Process.

(n) That the plaintiff was inciting violence and undermining the Peace Process.

(o) That the plaintiff was defiant towards the republican leaders and those involved in promoting peace.

(p) That the plaintiff was arrogant.

(q) That the plaintiff was frustrated by the fact that peace was being negotiated.

(r) That the plaintiff considered that the Peace Process was a surrender.

(s) That the plaintiff had threatened a number of prison officers in Belmarsh prison.

(t) That the plaintiff was engaged in a dirty protest against the Peace Process.

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(u) That the plaintiff had referred to negotiators of the Peace Process as "cowardly bastards".

(v) That the plaintiff was a vengeful man who stated that he 'had… a lot of scores to settle.'

(w) That the plaintiff was associated with people who engaged in drug taking.

4. In addition to the aforesaid meaning it is claimed that the plaintiff was released under the Good Friday Agreement and at the time of the said publication was committed to and was involved in promoting the Peace Process and was and was seen to work along side political leaders in that said process. By reason of these facts the said words are alleged to have the following additional innuendos:

(i) That the plaintiff was pretending to promote peace whilst being opposed to same.

(ii) That the plaintiff was obstructing the Peace Process from within the negotiation process itself.

(iii) That the plaintiff was being dishonest with his fellow republicans.

(iv) That the plaintiff was working alongside Gerry Adams whilst intending to kill him.

(v) That the plaintiff was not committed to the Peace Process.

5. It is said that these words in the context as pleaded are defamatory of the plaintiff in that he has been subject to public scandal, hatred, ridicule and contempt, and/or that he has been lowered in the estimation of right thinking people, and in particular that within the republican movement his credit and reputation has been seriously damaged. He claims damages therefor.

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6. The defendant, M.G.N. Ltd., without filing a defence, has issued a notice of motion wherein it seeks, pursuant to the inherent jurisdiction of this court, an order striking out or dismissing or permanently staying these proceedings on the grounds that the same are an abuse of process. It so claims by alleging that the action is clearly unsustainable, is bound to fail, is frivolous and/or vexatious, and/or that no cause of action has been disclosed or established.
7. In support of its application, a Mr. James A. O'Leary, described as "in house counsel" to the defendant, swore two affidavits dated respectively the 26^th June and 2^nd August, 2002. The essence of the evidence emerging from these affidavits is as follows:

(a) On 12^th October, 1984, a bomb exploded in the Grand Hotel, Brighton, which atrocity subsequently became known as "The Brighton Bombing". At that time the Conservative Party was holding its annual conference at this venue and thus many senior members of the British Government, the Conservative Party and members of their families were staying at this hotel. Five people were killed and several, more than 30, were injured, some very seriously. Following a police investigation Mr. Magee was charged with several offences arising out of this bombing.

(b) On 11^th June, 1986, the plaintiff was tried and convicted upon indictment of:

(i) doing an act with intent to cause an explosion likely to endanger life or cause serious injury to property,

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(ii) causing an explosion likely to endanger life or cause serious injury to property,

(iii) conspiracy to cause explosion likely to endanger life or cause serious injury to property, and

(iv) the murder of five people.

He was sentenced on 23^rd June, 1986 to life imprisonment, apparently with a recommendation from the trial judge that he should serve not less than 35 years in prison. He was described as "a man of exceptional cruelty and inhumanity".

(c) In June 1999 he was released under implementing legislation made pursuant to the "multi party agreement", which constitutes Annex I of the British and Irish Agreement both done at Belfast on 10/4/1998 and which generally is referred to the Good Friday Agreement.

(d) That the said articles could not possibly have defamed the plaintiff as his "reputation" could not be lowered in the eyes of right thinking members of society generally. The plaintiff, it is said, is a mass murderer and is responsible for the infliction of serious injuries on many people. He is an appalling, scurrilous and malicious individual and according to the defendant has by his own actions held himself up to public hatred, odium and contempt. He has no reputation which could be damaged.

(e) Accordingly and as a result he has no cause of action.

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8. In the replying affidavit sworn by Mr. Magee he asserts that the allegations made against him in the articles above mentioned are completely untrue and that he has been an enthusiastic supporter of the Peace Process from its inception and has continued to furnish support and intends to do so, with all the energy and commitment at his disposal, into the future. He describes himself as a voluntary worker, engaged in a reconciliation programme involving both communities in the North of Ireland and also involving victims in England: see para. 1 of the Statement of Claim.
9. Several cases which are hereinafter referred to were cited to this court on its inherent power to strike out a claim even in a defamation action. This is the accepted law, it is claimed, notwithstanding the special status of the jury in such proceedings and in particular their role on the question of what is or is not defamatory. Barrett v. Independent Newspapers Ltd. [1986] I.R. 13 was quoted as authority for the proposition that in an appropriate case a judge was entitled to direct a jury that the words complained of "were not capable" of being defamatory even though, by majority, the same court took the view that a direction to the effect that the words "were defamatory" was not possible. The defendant accepts for the purposes of this application only, that the offending words bear the meanings which the plaintiff has placed on them. Nevertheless, against the background of the five lost lives in respect of whom the plaintiff has been convicted of murder, it asserts that the most serious imputation contained in the article, namely a threat to kill Mr. Gerry Adams, could not possibly be viewed by right thinking members of society, as meaning that in some way the life of Gerry Adams was more valuable than the said lives of the murdered victims. Reliance was placed, inter alia, on the unreported English decision of Robson v. News Group Newspapers Ltd. Q.B.D. 9^th October, 1995, Levene v. Roxhan

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[1970] 1 W.L.R. 1322 and the Irish reported decisions of Berry v. Irish Times Ltd. [1973] I.R. 368, and Hill v. Cork Examiner Publications Ltd. [2001] 4 IR 219.

10. The power of the court which is invoked in this application is not that as found in Order 19, rule 27 or 28 of the Rules of the Superior Courts, but rather is a power which is part of the courts inherent jurisdiction. To succeed under Rule 27 an applicant must prove that the matter sought to be struck out is in a pleading and is either unnecessary or scandalous or is a matter which tends to "prejudice, embarrass or delay" a fair trial. To succeed under Rule 28 one must be able to show that the cause of action on the pleadings is frivolous or vexatious or that the Statement of Claim discloses no reasonable cause of action; see McCabe v. Harding Investment Ltd. [1984] I.L.R.M. 105. No evidence is admissible for the purposes of either of these rules.
11. One of the first reported Irish decisions, if not in fact the first, in which a defendant successfully relied upon the same jurisdiction as is raised in this case, was Barry v. Buckley [1981] I.R. 306. At p. 308 Costello J., as he then was, said:

"But, apart from Order 19, the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie's Judicature Acts [1906] at pp. 34-37 and the Supreme Court Practice [1979] at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of the courts does not take place. So, if the proceedings are frivolous or vexatious they will be

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stayed. They will also be stayed if it is clear that the plaintiff's claim must fail: …"

In the passage immediately following this one, the learned trial judge observed that this jurisdiction should be exercised sparingly and only in clear cases or as the same judge said in McSorley v. O'Mahony (Unreported, High court , 6^th November , 1996 in exceptional cases. He illustrated the kind of case which might be suitable for this type of resolution as being one "whose outcome depends on the interpretation of a contract or agreed correspondence". Indeed Barry v. Buckley was exactly that type of case, being one which on agreed facts the Court concluded that beyond any doubt there was no binding contract in existence between the parties for the sale of certain lands. Accordingly the application in that case was successful.

This view, both as to hesitancy and case type, was echoed by the Supreme Court in Sun Fat Chan v. Osseous Ltd [1992] 1 I.R. 425.

12. Notwithstanding these initial views, however, the courts in later cases, without objection being taken or raised, applied this jurisdiction to a wide variety of issues. In D.K. v. A.K. [1994] 1 I.R. 166 the Court, without argument, accepted and applied this power in a case where the plaintiff claimed multiple reliefs including damages for libel, negligence and breach of constitutional rights. Of particular relevance to us was the allegation that the plaintiff had been defamed in medical reports emanating from the first named defendant. The defence mounted was that these reports were covered by absolute privilege. However because certain questions of fact required resolution

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and because there existed a disputed issue of law, Costello J. refused the application and permitted the action to proceed to trial.

13. Other examples include Ennis v. Butterly [1997] 1 I.L.R.M. where the plaintiff sought damages grounded on representations allegedly made by the defendant to the effect that she would be financially secure and that, although married at the time, he the defendant would in fact marry the plaintiff. The Court dealt with the application on the basis that every fact pleaded in the Statement of Claim was correct and could be proved at trial and that every averment in the affidavit was likewise correct and again could be proved at trial. Where therefore any difference existed in either area between the evidence of the respective parties, such differences had to be resolved in favour of the plaintiff. With that approach the claim for breach of contract was struck out but the claim founded on misrepresentation was not, as the learned trial judge could not say that "it must fail". This particular approach was adopted by O'Sullivan J. in O'Keeffe v. Kilcullen (Unreported, High Court, 24^th June, 1998) and by Macken J. in Supermacs Ireland Ltd. v. Katsan (Mace) Ltd. (Unreported, High Court, 15^th March, 1999). Bruno Tassan Din v. Banco Ambrosiano S.P.A. [1991] 1 I.R. 569 was a case where the defendants succeeded in getting Murphy J., in the High Court, to strike out the plaintiff's claim as being frivolous or vexatious, this claim being one which sought to set aside an order of the Supreme Court made in earlier proceedings. The plaintiffs claimed inter alia that in such proceedings the defendants either negligently, mistakenly or fraudulently concealed from them vital evidence which if available would have had material bearing on the Supreme Court's previous deliberations. See also Phonographic Performance (Ireland Ltd) v. Chariot Inns Ltd. (Unreported, Supreme Court 16^th February, 1998).

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Another two examples are O'Neill v. Ryan [1993] I.L.R.M. 557 and Flanagan v. Kelly (Unreported, High Court, 26^th February, 1999): the former involved the application of the rule in Foss v. Harbottle (1843) 2 Hare 461 whilst the latter was a claim by a former director and shareholder of a company against the defendant accountant who was also the auditor of that company.

There are several other individual cases all different where this jurisdiction has been exercised. Accordingly, it would appear that as of now the courts power in this regard is at least in principle capable of being exercised in virtually any type of case; see the analysis by Murray J. in Godifern Ltd. v. Fitzgerald [2000] 3 IR 321 at pp. 334-335.

14. Turning from the general to the specific there are a number of decisions, given in defamation actions, where the same principles have been applied. I have already mentioned D.K. supra. In 1995 Murphy J. delivered judgment in Conlon v. Times Newspapers Ltd. [1995] 2 I.L.R.M. 76, wherein one of the major, if not the only issue on liability, was whether the article, admittedly written of and concerning the plaintiff could in fact defame him. The defendant alleged that no right thinking person could think less of Mr. Conlon having regard to the relevant circumstances. Indeed it was claimed that the admitted false article would in fact invoke sympathy for him rather than amount to a criticism of him. In the course of his judgment the learned trial judge made a number of observations which are relevant to this case and which can be summarised as follows:

(a) Subject to the trial judge being satisfied that the words complained of were capable of bearing a defamatory meaning it was within the

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province of the jury to decide whether, in the particular circumstances of each case, such words did in fact defame the plaintiff,

(b) a distinction, no doubt of so importance, had to be made between an application to strike out as an abuse of process and an application, at the conclusion of the plaintiff's evidence, to withdraw the case from the jury.

(c) With the latter the appropriate test was one of "capability" whereas with the former it was one of "arguability", that is whether it was arguable that the words were capable of having a defamatory meaning. At p. 80 of the report Murphy J. said, "At this stage it is sufficient if the plaintiff can show that there is at least an argument that the words are capable of the meaning for which he contends."

In furtherance of this distinction it is undoubtedly the situation that a trial judge is not bound to leave a case go to the jury even when an application to strike out, as an abuse of process, has been unsuccessful; see Morgan v. Oldham's Press [1971] 1 W.L.R. 1239.

15. This matter was again considered by the same judge in Looney v. Bank of Ireland and Ors. [1996] 1 I.R. 157, though the precise issue being litigated in that case was quite different from this issue of defamatory imputation. In Looney, the plaintiff sought damages from the defendants arising out of what the second named defendant had said about him in an affidavit sworn in earlier proceedings. The motion to strike out was based on a submission that the relevant affidavit was covered by absolute privilege and that therefore the action was bound to fail. No facts were in

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issue and so it was a pure question of law not in any way dependent on jury intervention. Being satisfied in the circumstances that the affidavit in question was covered by absolute privilege and that accordingly the defence as raised was bound to succeed, the action was struck out.

16. A similar jurisdiction exists in England, though most frequently such applications are made under rules of court, normally under Order 18, rule 19 of the corresponding English rules. No evidence is admissible on an application under Order 18, rule 19… (i) (a), that is where it is alleged that the statement of claim discloses no reasonable cause of action, but the situation is different when it is claimed that a pleading is scandalous, frivolous, vexatious or that it may prejudice, embarrass or delay a fair trial, or that otherwise it constitutes an abuse of the courts process; see Order 18 Rule 19 (i) (b), (c) and (d), as well as paragraphs 26.43 and 26.44 of Gatley on Libel and Slander, 9^th Ed.
17. As part of its submissions in the instant case, the defendant has relied upon a Court of Appeal decision in Levene v. Roxhan and Ors. [1970] 1 W.L.R. 1322. In that case the plaintiff, who in 1959 had been convicted of five offences relating to the giving of false information, and in July 1963 of having unlawful sexual intercourse, indecency and buggery, sued the defendants for libel in respect of an article which appeared in the News of the World on 23^rd July, 1963, being some two weeks after the latest convictions. In the publication mentioned reference was made to these convictions. In the defence a plea of justification was entered. This plea was based upon section 13 (2) of the Civil Evidence Act, 1968, which provided that proof of a person's previous convictions, in a defamation action where that issue became

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relevant, was conclusive evidence that the person in question committed such offences. On that basis it was claimed that the plea of justification had to succeed and accordingly the defendants moved an application to strike out the proceedings as an abuse of process. The Court of Appeal unanimously took the view that if the offending parts of the article were confined to the convictions as mentioned then the application would have to succeed. However, on the facts of that case, their Lordships were of the opinion that the article went further and that as a result all issues were not covered by section 13. Accordingly the application failed.

18. At p. 1325 of the report Salmon L.J. said:

"I confess that I have a great deal of sympathy with the defendants, because a man who had been convicted of rape and buggery might, I should have thought, find great difficulty in persuading a jury that his reputation was worth anything at all, particularly in July 1963 when this article was published, less than two weeks after his conviction and sentence to seven years imprisonment had, no doubt, then been splashed all over the newspapers. It is, however, for a jury alone to consider these matters and decide whether or not substantial damages ought to be awarded if the article does contain some defamatory matter which cannot be justified and to which there is no other defence.

No doubt there may well be cases where unchallengeable evidence can be produced not only of the convictions but also of all the defamatory surrounding facts which a newspaper article may set. In such a case a court, in my view, would be justified and, indeed, bound to strike out the statement of claim. Here, however, the defamatory matter which is justified by the unchallenged evidence at present before the court and the defamatory matter

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about the truth of which there is no evidence are so intermingled that I think that the judge was certainly entitled to take the view that it would be wrong to strike out the whole of the statement of claim or any part of it. Of course, if the whole of it could be struck out there would be great advantages to the defendant and possibly no injustice done to the plaintiff, for it seems unlikely that he will recover anything save nominal damages. One cannot, however, be certain."

19. The defendant also relies upon the case of Robson v. Newsgroup Newspapers Ltd., Q.B.D., Unreported, 9^th October, 1995. In that case the plaintiff issued proceedings against publishers of the Sun Newspaper in respect of an article which appeared in its addition on 15^th July, 1993. The newspaper claimed that the plaintiff had masterminded a multimillion pound mortgage scam and that he was due for sentence in respect thereof that day. In fact he had been convicted on two counts of conspiracy to defraud involving a large number of mortgage transactions with a value of approximately 4 million pounds. Judge Previte Q.C. was of the opinion that the article could not damage a man in respect of whom such convictions existed. He said "I find in respect of that allegation, that the imputation that he mastermind the scam or was leader of the gang is not reasonably capable of a defamatory meaning; alternatively it is, in the context of this article, frivolous and vexatious to complain of that matter, having regard to the fact that he was sentenced and served a sentence of four years imprisonment for being one of the conspirators in that offence. I therefore would strike out any complaint in respect of that part of the article."

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In my view that case has an entirely different set of facts and circumstance to the present one and has no comparable background setting in which the relevant issue must be considered. Accordingly I believe that for the purposes this specific case the decision in Robson is not of assistance.

20. Libel is the wrongful publication to a third party of words or matter which falsely impute against a person's reputation. Where a false imputation exists, it is said that the words are defamatory of the plaintiff. In the absence of a statutory definition of what is defamatory, the courts have usually approached this task by asking whether the suggested imputation tends to lower the plaintiff in the eyes of right thinking members of society, or tends to hold the plaintiff up to hatred, ridicule or contempt, or causes him or her to be shunned or avoided by right thinking members of society. The essence of the wrong is injury to reputation, and so whilst this branch of the law gives protection against a false statement which adversely affects a person's reputation, it does not do so, even if the statement is false, unless that person has a reputation recognised by law which is so adversely affected.
21. In all actions tried before a judge and a jury, there is a clear division between their respective roles. In general this also applies in defamation cases. Both the judge and the jury have separate functions, as regards the following aspects, inter alia, of such an action:

(a) Defamatory meaning: the judge decides whether the words are capable of a defamatory meaning and if they are it is a matter for the jury to say whether, in the particular circumstances of the case before them, such words have in fact defamed the plaintiff,

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(b) Publication: if there are no disputed facts on the issue of publication then it is a matter for the judge to decide whether such agreed facts constitute publication at law; if, however, facts are in dispute then the judge's decision is based on the jury's findings on the disputed facts.

(c) Reference to plaintiff: in Knupffer v. London Express [1944] A C 116 it was held that there were two questions involved on any issue of identification. The first question is one of law, namely whether the article can be regarded as being capable of referring to the plaintiff. "The second question is one of fact – does the article, in fact, lead reasonable people who know [the plaintiff], to the conclusion that it does refer to him? Unless the first question can be answered in favour of [the plaintiff] the second question does not arise …",. see p. 121 of the report.

(d) Fair comment on matters of public interest:-

A judge decides issues of public interest, whether the allegations are capable of being comment and whether there is reasonable evidence for a jury to hold that the comment wasn't fair. It is for the jury to distinguish between what is fact and comment, and on any comments so found, whether the same were in fact, in the particular circumstances, fair.

The above are of course but illustrations, with the jury also having important functions on many other ingredients of this tort, including justification, privilege, and damages.

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22. The central role which a jury plays in a defamation action has been referred to and commented upon on several occasions by the courts in this and in neighbouring jurisdictions. Perhaps that role is most unique when it is called upon to decide whether certain words are in fact defamatory of the plaintiff. At p. 272 of Quigley v. Creation Ltd. [1971] I.R. 269, Walsh J. said:

"Basically, the question of libel or no libel is a matter of opinion and opinions may vary reasonably within very wide limits. When a jury has found that there has been a libel, this Court would be more slow to set aside such a verdict than in other types of actions and would only do so if it was of opinion that the conclusion reached by the jury was one to which no reasonable men could not or ought not have come. It is true that if words only tend to lower a person in the minds of a particular class or section of society, particularly if the standard of that particular section of society is one which the Court cannot recognise or improve, the words will not be held to be defamatory. On the other hand, words are defamatory if the imputed conduct which would tend to lower a person in the eyes of a considerable and respectable class of the community, though not in the eyes of the community as a whole. The test is whether it will lower him in the eyes of the average right thinking man. If it will, then it is defamatory if untrue. It follows naturally that in an action in this country the standard will be that of the average right thinking person in this community. The law recognises the right of the plaintiff to have the estimation in which he stands in the opinion of the right-minded people in this community unaffected by false statements to his discredit."

This passage has been subsequently followed by the Supreme Court in Berry. v. Irish Times Ltd. [1973] I.R. and indeed in several other subsequent decisions.

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Immediately following the passage above quoted Walsh J. continued:

"In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of. In determining this matter, the judge will construe the words in accordance with a fair and natural meaning such as would be given to them by reasonable persons of ordinary intelligence in our own community; and that necessarily involves a consideration of the standards of the community and the position of the plaintiff in that community…"

23. In Barrett v. Independent Newspapers Ltd. [1986] I.R. 13 an issue for the Supreme Court was whether or not a trial judge could, when satisfied that the words complained of could not possibly be understood otherwise than to be defamatory, so direct the jury or whether, even if so satisfied, the issue as to liability still had to be left to the jury. By majority, the Supreme Court favoured the latter proposition.

Henchy J., at p. 22 of the report, having observed the crucial importance of the respective functions of judge and jury in defamation actions, went on to say:

"But if the judge rules that the words complained of are capable of bearing the defamatory meaning alleged, it is then for the jury to say whether the words do in fact carry that meaning. Because the community standard represented by the jury may differ radically from the individual standard of the judge in determining what is defamatory, it would be a usurpation of the jury's

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functions in the matter if the judge were to take upon himself to rule conclusively that the words were defamatory.

'If he (the judge) were to take upon himself to say that it was a libel, he would be wrong in so doing': per Alderson B. in Parmiter v. Coupland [1840] 151 E.R. 340… a judge is not entitled to say to the jury:

'I direct you that the words spoken of are defamatory in law; your duty is to assess damages.'…"

In a later passage Mr. Justice Henchy continued

"The community verdict of a jury is not to be condemned as perverse merely because it does not accord with that of a judge. It is to be deemed perverse only when no jury of reasonable men, applying the law laid down for them by the judge and directing their minds to such facts as are reasonably open to them to find, could have reached the conclusion that the words were not defamatory…" (see p. 23).

24. Griffin J., who with Henchy J. and Hederman J., constituted the majority of the Court in Barrett, said at p. 28 of the report:

"A finding of libel or no libel is to a considerable extent a matter of opinion as distinct from judgment as to actual fact, and this no doubt to a considerable extent accounts for what Lord Radcliffe in Densil v. Associated Newspapers [1964] A.C. 371 referred to as a peculiar historical sanctity which is accorded to the verdict of juries in libel actions, though as he said, even that sanctity is not inexpugnable."

See also the judgment of Hederman J.

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25. Finally I was also referred to the case of Hill v. Cork Examiner Publications Ltd. [2001] 4 IR 219. That case, however, in my opinion is not directly on point with any of the issues raised in the present case, nor is it really supportive of the defendant's application. In essence the decision of the Supreme Court as delivered by Murphy J. concentrated heavily on what was the correct legal position as to the tendering of general evidence of bad character or evidence of general bad character. This essentially in the context of a notice under Order 36, rule 36 having been served and in the context of a defence suggestion that because the plaintiff had been found guilty of serious crimes he had no reputation which merited the awarding of damages. The judgment went on to consider the learned judge's charge to the jury on the issue of damages, bearing in mind the earlier Supreme Court decisions in De Rossa v. Independent Newspapers Plc. [1999] 4 IR 432 and O'Brien v. Mirror Group Newspapers [2000] 1 IR 1. I do not however read the judgment as addressing in principle, or even touching upon, the particular role of a jury in deciding one of the most crucial elements on the issue of liability, namely whether the words complained of bore a defamatory imputation as against the plaintiff. In fact it can be said to be supportive of the jury's role in that, though the plaintiff had a damaged character having been convicted of a serious crime, nevertheless the jury went on to award him £60,000, which was not disturbed on appeal.
26. In my view therefore this Court must consider the application in question on the basis that there undoubtedly exists an inherent jurisdiction to prevent an abuse of process. If a cause of action is frivolous or vexatious or is clearly unsustainable or is bound to fail then to permit its continuation would be an abuse of the court's procedures and would therefore not be permitted. However, given the constitutional

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right of access to the courts, given the desirability of there being a judicial determination on the merits of every case and given the limitations necessarily involved in this manner of procedure, it has been emphasised, in the various cases above mentioned, that before affirmatively exercising this jurisdiction, the Court must accept in favour of the plaintiff all of the facts and allegations as pleaded and all of the assertions as made, and must not dismiss the action, at this infancy stage, unless fully satisfied and completely convinced that the claim is bound to fail. When that claim is grounded in defamation and in particular where the core question is one of defamatory meaning, then in addition to the matters above set forth, the Court should be acutely conscious of the uniqueness of the role which a jury plays on that issue. It is in this way therefore that I approach this application.

27. There is no doubt but that the plaintiff, with his major involvement in the Brighton bombing, committed the most foul of crimes. Five people were killed and a great number of others injured, some very seriously. It was a senseless and mindless act by people for whom the lives and well being of others was meaningless. The intent and recklessness behind this bombing was to kill, maim and injure as many people as possible, including senior members of the then British Government and members of the Conservative Party. Unfortunately such persons succeeded in their reprehensible aim and those convicted of it were and are rightly described as mass murderers. It was by any yardstick a loathsome crime. The plaintiff is one such person, having been convicted of five murders and several other serious offences including conspiracy to cause, and in fact causing, explosions likely to endanger life or cause serious injury to property. He was, according to the evidence, sentenced to life imprisonment in June 1986, with the trial judge apparently describing him as "a

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man of exceptional cruelty and inhumanity". That judge made a recommendation that the plaintiff should serve not less that 35 years in prison. Any person, including the plaintiff, who apparently was a member of the Provisional IRA at the time, the organisation which claimed responsibility for that bombing, could only be described as a vicious, cruel and depraved individual.

28. The question therefore is whether the claim of such a person that he was defamed by the article above mentioned must fail, in that even accepting the falsity of its material parts and the correctness of the implications as pleaded, no jury, being representative of the opinion of right thinking members of society in general, could conclude that the plaintiff had any reputation sustainable in law or that if he had such reputation the same had been adversely affected by that publication.
29. On 10^th April, 1998, there were signed in Belfast two agreements, one known as the British and Irish Agreement and the second known as the Multiparty Agreement. This latter agreement was entered into between the sovereign governments of Ireland and the United Kingdom of Great Britain and Northern Ireland and by several other participants. It provided for many gravely important issues of national and international significance. These included constitutional matters, the establishment of democratic institutions in Northern Ireland, relations between Northern Ireland, Ireland and the United Kingdom and many other crucially important subjects such as human rights, decommissioning, security, police and justice. In addition this document had a section dealing with prisoners. In paragraph 1 both governments agreed to put in place mechanisms to provide for an accelerated programme for the release of certain prisoners in certain circumstances. Pursuant to

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this undertaking the Government of Ireland enacted the Criminal Justice (Release of Prisoners) Act, 1998. In the North, the Northern Ireland (Sentences) Act, 1998, was the comparable statutory equivalent. Whilst the exact statutory provisions differed in detail from jurisdiction to jurisdiction, nevertheless common to all was a means for the early release of certain prisoners belonging to certain or prescribed organisations. The Provisional IRA was one such organisation. Prisoners affiliated to organisations which had not established and/or were not maintaining a complete and unequivocal ceasefire could not benefit from these arrangements. The qualifying conditions were so phrased and so designed so as to support and help underpin the operational success of the Good Friday Agreement. All such matters so agreed were complex, technical and interdependent, with a great deal of other material put in place in order to try and end the hostilities in Northern Ireland and indeed in the entire island of Ireland, and to provide a basis for the established institutions to serve a vibrant democracy where justice, equality and the rule of law prevailed. By any description of what occurred, these events were indeed historical.

As a member of the Provisional IRA and one who met the relevant criteria, Mr. Magee was released under a combination of the above substantive agreements and the consequential implementing legislation, including of course that appropriate to England.

30. A great number of parties and persons played significant roles. On the nationalist and republican side, which terms I use purely in a general way, Sinn Féin and its leaders, including Mr. Gerry Adams played such a role.

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31. The evidential basis from the plaintiff's point of view upon which I must approach this application is to accept his contention that the relevant portion of the article in question is completely untrue and that from the time when the Good Friday Agreement was concluded he has been and continues to be an active subscriber to the Peace Process, committed to it with all of his energy and is personally supportive of it. His involvement in a reconciliation programme is evidence of his dedication to such process. In addition, the fact that he qualified for release under the provisions of the Agreement applicable to prisoners and the fact that he was released after serving only 13 years of a minimum recommended sentence of 35 years, together with what has been positively sworn or alleged on his behalf, must give rise to a conclusion, inferentially at least, that the releasing authorities were satisfied that he had subscribed to the terms and conditions upon which a person in his situation could be so released under the said Agreement.
32. This court must also accept that the imputations as pleaded in paragraphs 3 and 4 above are untrue and can be so established at trial. These meanings can be summarised as follows:

(a) that the plaintiff totally opposed the Peace Process and was determined to undermine it, by all means available including the use of violence, weapons and bombs,

(b) that likewise he totally opposed those who were in favour of that process including the negotiators on the Republican side whom he described as "cowardly bastards",

(c) that in furtherance of this opposition he was prepared to kill and maim Mr. Adams, and

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(d) that he was dishonest and duplicitous in that, whilst accepting his release under the Agreement and whilst pretending to promote peace, his true views and intentions were in fact those of total opposition and to further such views he was prepared to use, and engage in the use of bombs, weapons and violence.

33. There is no doubt in my view but that the plaintiff has been guilty of the must heinous crimes known to law and to man. No person with any sense of justice, social responsibility and reason could objectively believe otherwise. Therefore there is no doubt whatsoever but that, in the eyes of right thinking members of society generally, this man's reputation has been gravely and perhaps terminally destroyed by those acts. If therefore this application had been made in a context which did not involve the Good Friday Agreement, the conclusion which I have arrived of might be entirely different.
34. However, in my view, what occurred in Belfast in 1998 was indeed historical. It attempted to deal with a most complex conflict involving many sections of society which had lasted for several decades if not much longer. During that time a great number of atrocities were unfortunately perpetrated by people like the plaintiff. Those involved in bringing about the agreement realised that some accommodation would have to be made by all sides in respect of those who had committed such revolting acts. However difficult it was to reach agreement on such measures, agreement was so reached. Indeed, both parts of the island of Ireland, in referenda accepted the Good Friday Agreement, including the accommodation which I have mentioned. Accordingly I believe that society in general and as a whole, including its

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many classes and sections cognisable by law, has been acutely conscious of this historical process and has displayed, quite legitimately, an openness of reconciliation and a level of tolerance, if not acceptance, which heretofore would have been unimaginable. This society has shown a degree of forbearance toward people to whom previously it would not have countenanced. Amongst those people are individuals like the plaintiff, to whom such tolerance is afforded I believe largely if not exclusively on account of their acceptance of, support for and participation in the process.

35. If this should be correct, in any substantial way it seems to me that I cannot say this stage of the within proceedings that the plaintiff's claim must fail. In other words that it cannot possible succeed. In other words that before a properly representative jury he could not even argue that the imputations as alleged were defamatory of him. I cannot agree that this is necessary so. In such altered circumstances I believe that the existence or not, as the case may be, of damage to reputation, is at least capable of argument. Such a finding, one way or the other, as Griffin J. said in Barrett v. Independent Newspaper Ltd. [1986] I.R. 13 at p. 28, is to a considerable extent, "a matter of opinion" as distinct from judgments as to actual fact and. Furthermore in my view, there is no doubt but that society's opinion is capable in a way recognised by law of changing from time to time either to lead or to response to events or other social changes. In my opinion, therefore given this crucial role which a jury plays on an issue such as this in a libel action, I cannot, as previously stated, conclude with certainty that right thinking members of society generally could not, despite the plaintiff's past, hold in his favour in the present proceedings.

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36. This conclusion , of course, has no implication whatsoever as to what a trial judge might do in the event of an application at the conclusion of the plaintiff's evidence that the case be withdrawn from the jury or if allowed to proceed what a jury might do. Finally the question of damages, if it should ever arise, remains untouched by this judgment.
37. Accordingly, I refuse the application.