Keane C.J.
Denham J.
McGuinness J.
Geoghegan J.
Fennelly J.BETWEENJUDGMENT delivered the 28th day of April, 2004, by Keane C.J.
Introduction
This is an action for libel. It arises out of six television broadcasts by the defendants (hereafter “RTÉ”) between 19th June and 1st July, 1998. In those broadcasts, it was alleged that the plaintiff / appellant (hereafter “the plaintiff”), a Dáil Deputy, when a member of the investment staff of National Irish Bank (hereafter “NIB”), had advised a retired farmer, not originally named, not to avail of the tax amnesty available at the time to taxpayers in default but to invest the monies in a scheme in the Isle of Man which would conceal its existence from the revenue authorities in this jurisdiction. The allegation was made in the course of news broadcasts and by the farmer concerned in interviews with the second named defendant. The retired farmer in question was identified as the third named defendant (hereafter “Mr. Howard”) in a broadcast on 1st July, 1998. The broadcast reported a denial by the plaintiff that she had ever spoken to the third named defendant or had any dealings or correspondence with him. In one of the broadcasts, the second named defendant said that, as part of their investigation, RTÉ had spoken to a number of customers of NIB who were brought into the same scheme by the plaintiff and had been told by her that the Revenue would never find out about their money in the Isle of Man.

The plaintiff having issued further statements in which she denied that she had ever encouraged either the third named defendant or anyone else to invest in financial products for the purpose of evading tax, correspondence ensued between the solicitors for the plaintiff, the solicitors for RTÉ and the second named defendant and the solicitors for the third named defendant. The plaintiff called upon RTÉ, the second named defendant and Mr. Howard to withdraw the allegations they had made, which each of them refused to do. These proceedings were then issued claiming damages for libel.

In the statement of claim, the transcripts of the broadcast in question were set out in full in the schedule. It was pleaded that the words meant, and were understood to mean, that the plaintiff had advised and encouraged Mr. Howard and other unnamed persons to evade tax and that inter alia she was a dishonest person who was not fit to be a member of Dáil Éireann. In their defence, RTÉ and the second named defendant denied that the words complained of were defamatory of the plaintiff. It was further pleaded, however, that insofar as they meant or were understood to mean inter alia that the plaintiff had advised and encouraged Mr. Howard to invest monies which had not been declared to the Revenue Commissioners and had assured other persons whom she was advising to invest in the scheme that the investments would remain hidden from the Revenue, the words were true in substance and in fact. It was further pleaded on their behalf that, insofar it was necessary for them to do so, they would rely on the provisions of s. 22 of the Defamation Act, 1961. The defence delivered on behalf of the third named defendant similarly denied that the statements attributed to him bore the defamatory meaning alleged, but pleaded that, insofar as they meant, or were understood to mean, that the plaintiff had advised and encouraged Mr. Howard to invest monies which he was aware had not been declared to the Revenue Commissioners and that she had assured Mr. Howard that the latter would never find out about such investments, the words complained of were true in substance and in fact. The third named defendant also relied on the provisions of s. 22 of the Defamation Act, 1961.

Particulars of the plea of justification in the defence of Mr. Howard were sought on behalf of the plaintiff. In the reply, it was stated that the facts relied upon were as set out in the defence. Shortly before the beginning of the trial, further particulars were delivered in which it was made clear that the defendant would rely in addition upon inter alia the dealings between the plaintiff and other customers of NIB.

The trial began before Morris P. and a jury on the 6th February, 2001. During the course of the trial, the trial judge ruled that Mr. Howard was confined to the plea of justification in the defence and that he was accordingly restricted to relying upon the dealings between himself and the plaintiff.

The provisions of s. 22 of the Defamation Act, 1961 which, as already noted, were relied upon in both the defences, were the subject of much argument both at the trial and on the hearing of the appeal. The section provides that

“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.”

While it had been pleaded in both defences that the words complained of did not bear the defamatory meanings attributed to them by the plaintiff, that defence was not relied on at the trial and much of the evidence adduced at the trial related to the pleas of justification relied on in both defences. In addition to the plaintiff, the second named defendant and Mr. Howard, a number of other witnesses gave evidence at the trial, including four customers of NIB who gave evidence on behalf of the defence that the plaintiff had encouraged them to invest in the Isle of Man Scheme and had assured them that the existence of the monies invested by them in the scheme would never become known to the Revenue Commissioners. Evidence was also given by tax experts and by officials, or former officials, of NIB.

The case was at hearing for 29 days. At the conclusion of the evidence, the following questions were left by the trial judge to the jury:

"(1) Have the defendants proved that the plaintiff induced [Mr. Howard] to evade his lawful obligation to pay tax by not availing of the tax amnesty?

If the answer is “NO” proceed to question 2. If the answer is “YES” proceed no further.

(2) Have the defendants proved that the plaintiff advised or encouraged other persons – being those referred to in the evidence – to evade tax?

If the answer is “NO” proceed to question 4 to assess damages. If the answer is “YES” proceed to question 3.

(3) In view of the finding to question 2, has the plaintiff’s reputation suffered material injury by reason of the matters published relating to [Mr. Howard]?

(4) If the answer to question 1 and 2 is “NO” assess damages.


(a) General damages _____

(b) Aggravation of such damages _____

(c) Total ____


(5) If the answer to question 1 is “NO” and to questions 2 and three is “YES” assess damages to the material injury to the plaintiff’s reputation

(a) General damages ____

(b) Aggravation of such damages _____

(c) Total ____”

The jury answered the first question “NO”, the second question “YES” and the third question “NO”. Although in the form in which it was presented to them, it did not appear that any answer was accordingly required to either question 4 or 5, following a brief discussion with the trial judge they answered question 5 as follows:

"(a) General damages: NONE

(b) Aggravation of such damages: NONE”

The defendants were awarded the costs of the action against the plaintiff.

The plaintiff has now appealed to this court and, on the hearing of the appeal, has confined the relief she seeks to an order directing a new trial of the proceedings and an order setting aside the order of costs in favour of Mr. Howard. While a considerable number of grounds were contained in the notice of appeal, those on which the plaintiff relied at the hearing, apart from the ground relating to costs, were as follows:

(1) The trial judge erred in law and in fact in allowing RTÉ and the second named defendant to introduce into evidence, and cross-examine the plaintiff on, documents which were not admissible, contrary to the rules of evidence, were of no probative value and were gravely prejudicial to the plaintiff.

(2) The trial judge erred in law and in fact in allowing Mr. Howard to rely upon questions 2 and 3 and thereby to rely upon the contention in support of his justification plea that the plaintiff advised or encouraged persons other than Mr. Howard to evade tax, whereas he ought properly to have formulated the questions so as to direct the jury to assess damages against Mr. Howard if the answer to question 1 was “NO”.

(3) The trial judge erred in law and in fact in


(a) permitting counsel for RTÉ and the second named defendant to requisition him on the morning of day 28 in respect of matters on which he had already ruled in response to their requisitions on the previous afternoon;

(b) giving a second charge to the jury on day 28, immediately before the jury retired to consider its verdict, which was, it was said, wholly one-sided in favour of the defendants, destroyed the balance of the charge and was gravely unfair and prejudicial to the plaintiff,

(c) put to the jury, in the course of his second charge, matters allegedly relating to the credibility of the plaintiff which were not in accordance with the evidence and which had not been put to the plaintiff during the course of her evidence.


(4) The trial judge erred in law and in fact in

(a) failing properly or adequately to direct the jury on the issue of majority voting having regard to the questions put to it;

(b) directing the jury that, where there was a majority of them in favour of the plaintiff on question 1, all twelve members of the jury should go on to consider question 3 when it should only have been those who found in the plaintiff’s favour on question 1.

Events at the trial

The first ground of appeal essentially related to a document which came to light as a result of third part discovery made in the proceedings by NIB. This document was in the form of a memorandum dated the 30th July, 1990 and signed by Mr. Patrick Cooney, who was at the time in charge of the Financial Advice and Services Division of NIB of which the plaintiff was a member. The first paragraph read

“Just a brief note to accompany this month’s investment bulletin on funds which we should be concentrating on at present.”

The second last paragraph read

“Finally, we have the people who have money invested offshore already or whose money is ‘hot’. In this scenario, we should in almost all cases, direct the monies into our new bond, ‘The Emerald International Portfolio’, which is a combination of the above funds.”

Counsel for RTÉ and the second named defendant indicated, in the absence of the jury, that he proposed to put this document, together with other documents, to the plaintiff in cross-examination. It was submitted that the document appeared to have been addressed to the plaintiff and that, if she denied having received the letter, she would be cross-examined on the basis that she was not telling the truth. It was further submitted that in any event the letter was admissible as to the policy within the bank as to how the particular scheme was to be sold and that the author of the document had been subpoenaed and would be called to give evidence in relation to the letter. Counsel for the plaintiff objected to the plaintiff being cross-examined in relation to the letter, but the trial judge ruled that it was admissible.

On day four of the trial, counsel on behalf of the defendants cross-examined the plaintiff about this letter. Copies having been distributed to the jury, he read the entire letter and asked the witness whether it had gone to her. She said that she had never received it, but agreed that it might well have been addressed to the five people who were selling products for and on behalf of the Financial Services Division and that she had been engaged in selling the products identified by Mr. Cooney. She said that the expression “hot” had two meanings for her: it meant either undeclared money or a person who was “hot” for investment or a pension, “somebody basically who is about to do the business”.

Counsel then proceeded to move to another topic, and counsel for the plaintiff inquired whether he was going to put to the witness what Mr. Cooney would say about the letter. Counsel responded that Mr. Cooney had been subpoenaed to give evidence and that he would be called in relation to the matter. He also said that Mr. Cooney, as he was entitled to do, had chosen not to speak to the plaintiff’s counsel.

The author of the letter, Mr. Patrick Cooney, gave evidence on day 20. He said that the letter had not been sent out because, before the investment bulletin had been completed, the invasion of Kuwait by Iraq began and a period of turmoil followed in the stock markets. He accordingly left the letter on the file. In the absence of the jury, counsel on behalf of the plaintiff submitted that, in the circumstances, the letter should be withdrawn from the jury and they should be directed that they were no longer to pay any regard to the letter. Counsel for the plaintiff submitted that his obligation was to prove the letter which he had done. He further submitted that he was entitled to ask the witness whether the letter reflected a practice in operation in the section of NIB in which the plaintiff worked.

The jury having returned, the trial judge said that he wanted to warn them “in the strongest possible terms” that, although the plaintiff had been cross-examined on the basis that she had received the letter, they should consider the cross-examination in the light of the evidence now before them that she had never in fact received the letter. Mr. Cooney then resumed his evidence and said in answer to counsel for the plaintiff that the reference to “hot money” in the letter was to money which was held by people who were keen to invest.

During the course of the trial, four persons who had been customers of NIB gave evidence as to their dealings with the plaintiff. They were Patrick Duff, Joy Howe, Seán Roe and Joan Quigley. The first said that in 1993, when he was considering availing of the tax amnesty, he was advised by the plaintiff that he should not and that if he invested the money in the Isle of Man no one would know about it. Ms. Howe said that the plaintiff advised her to put money in a numbered account on which her name would not appear and to which the Revenue Commissioners would not have access. Mr. Roe said that he had made a lot of money from repairing engines, but was uneasy about it, and was advised by the plaintiff to put it in an offshore account since that would mean that it would be tax-free. Ms. Quigley said that her husband had money in Newry which had not been declared to the Revenue and that the plaintiff advised her against availing of the amnesty but rather to invest the money in the Isle of Man Scheme. In her evidence, the plaintiff denied having given any advice of this nature to any of these persons.

In the course of his charge which began on the afternoon of day 27, the trial judge summarised this evidence and also referred to various criticisms which had been made on behalf of the plaintiff of the evidence in question. At the conclusion of his charge, Mr. Feeney S.C. on behalf of RTÉ and the second named defendant raised a number of requisitions in relation to the charge. As to the evidence to which I have just referred, he said that the trial judge, while highlighting the criticisms which had been made on behalf of the plaintiff of that evidence, had made no reference to the criticisms which had been made on behalf of his clients of the plaintiff’s evidence in relation to the same matters and that, in the result, the charge was seriously unbalanced in favour of the plaintiff. The trial judge, having heard the various requisitions by counsel in relation to the charge, indicated that he would recall the jury in relation to some of them, but he would not do so in relation to the matters to which I have just referred. However, the following morning, on day 28, having heard further submissions from Mr. Feeney in the course of which he suggested to the trial judge certain specific matters in favour of the defendants to which he should draw the jury’s attention, the trial judge gave the jury further directions during the course of which he drew the attention of the jury to the matters in question, while making it clear that he was doing so at the instance of counsel for RTÉ and the second named defendant.

In the course of his charge on day 27, the trial judge, in dealing with the question of a majority verdict, said

“… I want to deal with the way in which your vote, if it comes to that, will be dealt with. You decide the case either unanimously or on a majority verdict. You may, ladies and gentlemen of the jury, lose three of your members and yet come up with a majority verdict. So that if nine of you decide one way or the other, the other three’s vote is rejected and the decision is come to on a majority.

“Now I want to give you a very important direction in this regard. Assume for the moment that three of your members when you are coming to decide on the liability issue should decide to vote against [the plaintiff], decide that she is not entitled to win, now those three must stand back from the assessment of damages because that makes sense when you consider it, that if those three people felt that she wasn’t entitled to win, it may well be that their vote would pass on into the assessment of damages and they might well say something like this:


‘Well, she wasn’t entitled to damages in the first place anyway so I am going to give her the miserable award as follows.’

Therefore, if you are deciding on a majority of nine, ten, eleven the people that you lose at the early stage on the liability issue stand back and do not enter into any debate on the assessment of damages.”

At the conclusion of the charge that evening, Mr. Feeney, in raising requisitions to the charge, said

“I would have thought if the nine jurors answered the first question ‘NO’ it is the same nine jurors who should deal with the second question as well and I did not think that it entirely clear from Your Lordship’s direction. I think it is correct if you answer the first question ‘YES’, if nine jurors answer the first question ‘NO’, I would have thought it makes logical sense that the same nine should proceed to deal with question 2. It would be against my interest to say this, but I think that is the logic which has been followed in previous [sic], given that the three who have answered the first question have effectively identified that the plaintiff should lose the case.”

In his ruling on the requisitions that evening, the trial judge made no reference to that requisition. The following morning, however, Mr. Feeney returned to the matter and indicated that he now took a different view. He said

“The infirmity that one is aiming to protect against is damages being dealt with by people. What I think is all twelve must be allowed to answer questions 1 and 2 and when it comes to damages, all nine must be in agreement in relation to questions 1 and 2.

Mr. Justice Morris: Yes

Mr. Feeney: I think that is the simple proposition. In other words, there is no reason in principle why if somebody has dealt with the factual determination in one, because the second one is a separate and stand alone one, that they should not as a jury be allowed to deal with it.

Mr. Justice Morris: Yes, and subject to anything [counsel for the plaintiff] says I think that is correct.”

Counsel for the plaintiff, in the course of a lengthy response to the further requisitions being raised by Mr. Feeney that morning, said in relation to this matter:

“The only other point I want to mention to Your Lordship is that I accept what Mr. Feeney does say in relation to the 9:3 point, the housekeeping point that he raised at the outset. I have no difficulty in that regard and I would accept his submission in that regard.”

The jury retired to consider their verdict at 11:44 a.m. They returned at 3:59 p.m., when the foreman handed a note to the trial judge. The following exchanges ensued:

“Mr. Justice Morris … The note reads as follows:

“To the judge, on question 1 – 3 we are seeking clarification regarding the definition of majority in this case.”

Is that correct?

Foreman of the jury: Yes.

Mr. Justice Morris: Am I understanding you correctly, you want to know the circumstances in which a majority decision can be accepted?

Foreman of the jury: Yes.

Mr. Justice Morris: Very good. First of all, on question No. 1, I do not think there could be any mystery about that. I think the question is:


“Have the defendants proved that the plaintiff induced [Mr. Howard] to evade his lawful obligations to pay tax by not availing of the tax amnesty?”

Now three of you ladies or gentlemen can disagree with the other nine. Taking an example, supposing that nine of you, and I am only taking this as an example, you understand me, supposing nine of you felt that the defendants had not proved that to your satisfaction but three of you were of a different opinion, in those circumstances the question is have the defendants proved that the plaintiff induced [Mr. Howard] to evade his tax obligations and supposing, as I say, that nine of you decided that they had not proved that, the answer would be “NO” to the first. Now you have lost three of your members at this stage. Now you go to question No. 2. Those three ladies or gentlemen that you have lost can come back into play because that is a completely different question, a completely different question in the sense have they established that proof to your satisfaction in relation to the other four people. Now let us assume for the moment that you decided that they have not proved that, at that stage the plaintiff is succeeding on both of those cases. Now you are going on to assess damages. The damages that you will assess under question 4 will be assessed by the nine that voted in favour of the plaintiff all the way down. Do you understand?

Foreman of the jury: Yes.

Mr. Justice Morris: So as I explained to you yesterday afternoon, the reason for dropping the three that you have lost on the way is because those three voting against the plaintiff on the liability issue might make up their mind ‘well, she doesn’t deserve to get money anyway’ and for that reason give her very low damages. So that is why you will drop the three that we have been talking about when it comes to assessing damages. Does that cover the point?

Foreman of the jury: Yes.

Mr. Justice Morris: Very good, thank you very much.

Mr. Feeney: Was the question in relation to question 3 or question 4 My Lord?

Mr. Justice Morris: 1 – 3.

Mr. Feeney: Because I think Your Lordship has dealt with 1, 2 and 4 but not 3. I am sorry.

Mr. Justice Morris: No, I am very grateful, Mr. Feeney. So I am going to deal with question No. 3 now …”

The trial judge then proceeded to explain the significance of question 3 to the jury, but without referring at any point to the majority that would be required for an answer to that question. The exchanges continued as follows:

Foreman of the jury: If it is a majority, can twelve of us decide question 3?

Mr. Justice Morris: Can the twelve of you decide it? Yes.

Mr. Feeney: I think it might be better if we mentioned it in the absence of the jury as to if there was, say, a 10:2 just as an example, on question 2, it might be desirable to hear the parties in relation to, if I am assuming if was a 10:2 in question 2, who are the parties that would participate in question 3?

Mr. Justice Morris: Mr. Foreman, ladies and gentlemen, accept my answer for the moment unless we send for you. Thank you.”

The jury then left court and the exchanges between the trial judge and counsel continued as follows:

“Mr. Justice Morris: Mr. Feeney, before I hear you, and I am grateful for any guidance that any of the Bar have to offer, my thinking is this. The authorities as I know them have established that the only reason why you can’t have someone who voted against the liability voting on the issue of damages would be that person might be, as I have said to the jury, prejudiced or, in other words, reluctant to give any worthwhile damages in view of his views on liability. I do not see any reason why he should not embark on a consideration of number 3. Does anybody disagree with that?

Mr. Feeney: I think there is a certain inherent logic to the extent that you are not asking them to assess damages, My Lord.

Mr. Justice Morris: That is encouraging indeed. Thank you, Mr. Feeney, I am so grateful.

Mr. Feeney: I do not want to in anyway …

Mr. Justice Morris: Very well. Unless anybody has any problem with that ruling, I will leave it stand.

Mr. Feeney: Is that there can be a 9:3 or a 10:2 majority?

Mr. Justice Morris: On questions 1 and 2 and yet have the twelve.

Mr. Feeney: Yes.

Mr. Mohan [for the plaintiff]: Yes, I agree to leave it at that.

Mr. Justice Morris: Thank you very much.”

That concluded that exchanges between the trial judge and counsel on this topic. At 4:42 p.m., the jury returned, the foreman informed the judge that they had reached a verdict and the issue page was handed to the judge with the answers given as already indicated.

Submissions of the parties

On behalf of the plaintiff, Mr. Eoin McCullough S.C. submitted that the memorandum of the 30th July, 1990 was clearly at best hearsay evidence of the practice alleged to be current in the Financial Advice and Services Division of NIB. He submitted that where, as here, counsel was not in a position to put it to the witness being cross-examined that the author of the document would say that it had been sent to her, he was not entitled to do any more than invite the witness to read the document without its being read in court. He would then have been entitled to ask her, in the light of the document, whether she was adhering to her evidence that she was not aware of any practice in her division of advising or encouraging customers to evade tax. He said that, if the plaintiff had refused to accept as true what the document purported to record, its contents could not have been evidence against her and a fortiori could not have been opened to or handed to the jury. He submitted that, having regard to the critical nature of this evidence, it was entirely wrong that the jury should have been aware of the contents of the letter from such an early stage of the trial. He cited in support of these submissions the statements of the law in Archbold on Criminal Pleading, Evidence and Practice (2003 Edition) at para 9.2, para 8.135 and paras 9.7 and 9.8, R. –v- Seaham 11.Cr. App. Reps, 13; R. –v- Gillespie & Anor 51 Cr. App. Reps, 172; R. –v- Morris Cross 91 Cr. App. Reps, 115; and the decision of this court in Moloney –v- Jury’s Hotel Ltd., (unreported; judgment delivered 12th November, 1999).

On behalf of RTÉ and the second named defendant, Mr. Feeney submitted that the document was in fact admissible in evidence, since it had been prepared by Mr. Cooney as a memorandum to be sent to the five financial advisors working in his department, including the plaintiff and he had also given evidence that the matters dealt with in the memorandum would also have been raised at meetings with the financial advisors. The jury had been fully and properly directed by the trial judge to consider the cross-examination of the plaintiff in the light of the fact that the memorandum had never been sent to her.

As to the form of the questions left to the jury, Mr. McCullough submitted that the trial judge was in error in drawing no distinction between the questions relating to RTÉ and the second named defendant on the one hand and Mr. Howard on the other hand. The trial judge had ruled that Mr. Howard was not entitled to rely on the dealings between the plaintiff and other customers in support of his plea of justification and it followed inevitably that he was not entitled to the benefit of an answer in the negative to question 3. He submitted that, the jury having found for the plaintiff in respect of question 1, it followed that the plaintiff was thereafter entitled to recover the appropriate damages as against Mr. Howard.

As to the submission that, in any event, Mr. Howard would have been entitled to rely on the plaintiff’s dealings with other customers by way of mitigation of damage, Mr. McCullough submitted in the first place that it would have been necessary for him to plead an intention to rely upon such material, citing the decision of the House of Lords in Speidel –v- Plato Films Ltd. [1961] AC 1090 and of this court in Browne –v- Tribune Newspapers Plc. [2001] 1 IR 521, 530. He submitted, in the second place, that in any event this evidence was not directed to the plaintiff’s general reputation, but rather was of specific acts of alleged misconduct and that, accordingly, Mr. Howard could not rely on the evidence under the rule in Scott –v- Sampson [1882] 8 QPT 49, which had recently been applied by this court in Browne –v- Tribune Newspapers Plc.. He accordingly submitted that, in the case of Mr. Howard, the plaintiff had succeeded in her claim and that it should be remitted to the High Court for an assessment of damages only.

On behalf of Mr. Howard, Mr. Paul O’Higgins S.C. submitted that, since the answer of the jury to question 2 meant that they had decided that the plaintiff had advised or encouraged persons other than Mr. Howard to evade tax, it followed that, even if Mr. Howard had failed in his plea of justification, any damages to which he was entitled were necessarily reduced to “vanishing point”. Their answer to that question had as its inevitable consequence a finding that her reputation in the relevant area was of no value and she would have been entitled at best to contemptuous damages or no damages at all. He cited in support of this submission the decision of the House of Lords in Grobbelaar –v- Newsgroup Newspapers Ltd. [2002] 4 All ER 732.

As to the further directions given by the trial judge to the jury on day 28, following further submissions by counsel on behalf of RTÉ and the second named defendant, Mr. McCullough submitted that, in the first place, the trial judge had never indicated the basis on which he had decided to alter the ruling he had given at the close of the hearing on day 27 and that this procedure was unfair. He further submitted that there was a very serious risk that the jury would give undue weight to a charge made by a trial judge consisting entirely of criticisms of the plaintiff, given to them on a separate day and in isolation from any material to the opposite effect. He also submitted that, in the further directions given by him on day 28, he had not repeated the proper warning given by him to the jury on the previous day that the decision on the facts in the case was essentially one for them. Mr. McCullagh further submitted that the trial judge was in error, when giving the further directions in referring to two criticisms of the plaintiff’s evidence in respect of matters which had never been put to her in cross-examination. He submitted that, in these respects, the fundamental requirement that a trial must essentially be, and appear to be, fair had not been met, citing the judgment of Henchy J. in this court in Kelly –v- The Board of Governors of St. Laurence’s Hospital [1988] IR 402.

On behalf of RTÉ and the second named defendant, Mr. Feeney submitted that the trial judge had been in error in regarding his function, in relation to the evidence of the five persons who had said that the plaintiff advised or encouraged them to evade tax, as being fulfilled once he had told them what the witnesses had said and that the plaintiff denied their evidence and had reminded them of the criticisms advanced of that evidence. He submitted that the trial judge should also have reminded the jury of the countervailing criticisms applicable to the evidence of the plaintiff and that, had he not acceded to the submissions on behalf of his clients the following day, there would have been a substantial wrong or miscarriage in the trial. Mr. Feeney further submitted that the trial judge had made it perfectly clear that the further considerations he was directing their attention to on the morning of day 28 had been drawn to his attention by the respondents. He had, moreover, again expressly reminded the jury that the assessment of the facts was exclusively a matter for them. As to the suggestion that the trial judge had failed to direct the jury’s attention to two criticisms of the evidence of one of the witnesses, Mr. Duff, Mr. Feeney submitted that the relevant aspects of the evidence had not been challenged on behalf of the plaintiff in cross-examination of Mr. Duff and there had been no reference by counsel on her behalf to these matters in his closing address to the jury. He said that it followed that, in these circumstances, there was no unfairness to the plaintiff in the manner in which the trial judge had dealt with these matters in his further directions to the jury on day 28.

As to the directions given by the trial judge to the jury on the majority required for the answers to the questions, Mr. McCullough submitted that these were clearly wrong. Section 95 of the Courts of Justice Act provided that in every trial of a civil action in the High Court before a judge and jury, a majority vote of nine of the twelve members was necessary to determine the verdict. It had been held by this court in Arnott –v- O’Keeffe [1977] IR 1, that this provision meant that, when the jury was operating on a majority vote of nine of the twelve members, the verdict should be that of a particular nine and that when the verdict depended upon the answers to several components of the verdict the answers in all cases must be those of the same nine. The trial judge was entirely incorrect in directing the jury that it was only in relation to the assessment of damages that a minority who had answered one or more of the earlier questions could not form part of the majority.

On behalf of the defendants, Mr. Feeney and Mr. O’Higgins submitted that, to the extent that there was any misdirection on this issue, it was not in relation to a fundamental legal issue and had not resulted in any substantial wrong or miscarriage at the trial. It was entirely possible that the jury had answered each of the questions unanimously or that the same nine jurors had composed a majority in respect of each of the answers to questions 1 – 3. If the direction was erroneous, it might have operated in ease of the plaintiff when the jury came to answer question 3, since a majority in her favour on that question might have consisted in part of jurors who had been in the minority in answering question 2.

Mr. Feeney and Mr. O’Higgins further submitted that the directions by the trial judge on the necessary majority had been fully assented to by counsel for the plaintiff. It was, accordingly, not open to the plaintiff to raise the point for the first time in this court. An appellate court should not entertain such an argument, unless it was clearly such as to lead to a substantial miscarriage of justice, citing the unreported decision of the Court of Appeal in England in Bennett –v- Guardian Newspapers (judgment delivered 8th July, 1998). They further submitted that it was in any event open to the parties to agree between themselves as to matters affecting the jury, citing the judgment of Walsh J. in Kielthy –v- Ascon Ltd. [1970] IR 122.

In reply to the last mentioned point, Mr. McCullagh submitted that, while the parties were undoubtedly entitled to adopt procedures by consent in relation to matters such as the admissibility of evidence, they could not, where the trial was by a judge and jury, acquiesce in a trial by a jury otherwise than in accordance with the legal requirements as to such a trial. Since the reaching of a verdict by a majority of at least nine members of the jury was a statutory requirement, the parties were not entitled to depart from it, any more than they would be entitled to agree on a jury chosen and empanelled other than in accordance with the requirements of the law or to the jury deliberating on their verdict in a manner not permitted by the law, e.g. in public rather than in private.

Conclusions

Before considering the individual grounds of appeal relied on by the plaintiff, I should make some general observations.

Order 58, Rule 7(2) of the Rules of the Superior Courts (which applies only to trials with a jury) provides that

“A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge of the trial was not asked to leave to them, unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appears to such court that such wrong and miscarriage affects part only of the matter in controversy, or some or one only of the parties, the Supreme Court may give final judgment as to part thereof, or as to some or one only of the parties, and may direct a new trial as to the other part only, or as to the other party or parties.”

It was pointed out by Henchy J. in Kelly –v- Board of Governors of St. Laurence’s Hospital [1988] IR 402 that the rule applies where there has been a wrong or miscarriage “in the trial”, as distinct from the result of the trial. It would follow that the verdict of the jury should not be allowed to stand where the direction or ruling found to be erroneous was of such a character as to render the trial itself unfair or to give it the appearance of lack of fairness.

In this context, the fact, if it be the fact, that the ground on which it is sought at the appeal to argue that the direction or ruling was erroneous was not advanced at the trial, although not necessarily a conclusive factor, can undoubtedly be of considerable importance in determining whether the trial was either essentially unfair or lacking in the appearance of fairness.

I next consider in turn the four grounds of appeal relied on by the plaintiff.

(a) Admissibility of memorandum of 30th July, 1990

In considering this ground of appeal, it should be borne in mind that the trial judge ruled as inadmissible, because it was not relevant to any issue which the jury had to determine, evidence as to any alleged policy on the part of NIB to encourage the sale of particular investment portfolios to persons interested in concealing undeclared monies in so-called “offshore” accounts. The memorandum of 30th July, 1990 was, however, adduced in evidence on a different basis, i.e. that it was evidence of a practice in the division of which the plaintiff was a member of encouraging customers or potential customers to invest in such portfolios as a method of concealing undeclared income.

The objection to this memorandum was that it was inadmissible as hearsay evidence and did not come within any of the acknowledged exceptions to the rule against the admission of such evidence. That objection proceeded on the assumption that since there was no evidence, either in the form of an admission by the plaintiff or evidence by the author of the memorandum, that it had been sent to the plaintiff, it was inadmissible under the rule against hearsay.

I am satisfied that this assumption was erroneous. The rule against hearsay renders inadmissible an out of court statement which is tendered as evidence of the truth of facts which the statement asserts. In this case, the person who wrote the memorandum, Mr. Patrick Cooney, gave sworn evidence that he was the author of the memorandum and that it accurately summarised the practice in the division of which the plaintiff was a member, although he disputed the suggestion that the expression “hot money” necessarily referred to sums which had not been declared to the revenue. That was a practice under which the members of the division were under instructions to encourage investors with “hot money” to make it available for rapid investment in certain offshore investment funds. The jury were entitled to infer from his evidence that it was a practice of which the plaintiff was aware, as demonstrated by the following passage during his cross-examination (day 20):

“267Q. And you say that there would have been meetings in relation to this [the memorandum] any way?

A. As a unit we would have met most weeks pertaining to investment matters.

268Q. So can I take it then that even though the letter was not sent that the same things would have been said at your meetings as are contained in the letter?

A. On and off, yes. We would have had meetings most Monday mornings, we would have just discussed the way stock markets were for the particular week etc.

269Q. So the letter would merely reflect what was being said by you to the investment consultants any way?

A. Well, this letter was not actually sent.”

The memorandum, accordingly, was not tendered as evidence of the truth of any facts which it asserted. It was no more than written confirmation of oral evidence which its author gave on oath in the witness box. As such, it was not, in my view, in any sense hearsay evidence. If Mr. Cooney had denied that any such practice existed in the division, the letter could undoubtedly have been put to him in cross-examination so as to show, for the purpose of damaging his credibility, that he had made inconsistent statements on a previous occasion. Conversely, if that had been the burden of his evidence and the memorandum contained some form of warning to the members of the division not to encourage taxpayers to evade their obligations, it would legitimately have been challenged as being hearsay which was inadmissible under the rule against self-corroboration. That not being the position, it was never at any stage properly regarded as hearsay and, indeed, in evidential terms was of virtually no importance, once it transpired that it had never been sent to the plaintiff, but remained admissible as evidence of a practice in the division of which its author gave oral evidence.

That evidence was unarguably relevant to the issue as to whether the plaintiff had given the advice which she was alleged to have given to Mr. Howard and the other four customers of NIB. The fact that the document had not been sent to the plaintiff, because of the intervention of the First Gulf War, did not render Mr. Cooney’s evidence hearsay: his evidence as to the practice in the division was given in court and was capable of being tested on cross-examination and the jury were in a position to assess his demeanour and credibility. It is the absence of those features of out of court statements which render them inadmissible under the hearsay rule as evidence of the truth of any facts which they assert. Since Mr. Cooney had declined to attend a consultation with the defendants’ legal advisors, counsel for RTÉ and the second named defendant could do no more than ask the plaintiff whether she had ever received the document and make it clear that the author of it would be giving evidence. He would have been properly criticised if he had not put the evidence in question to the plaintiff in cross-examination.

As to the authorities relied on by Mr. McCullough, three of them were decisions in appeals from verdicts in criminal trials where the accused gave evidence and were cross-examined as to documents of which other persons were the authors, but the authors themselves had not given evidence. The cases constitute an important line of authority as to the procedure which should be properly adopted by the prosecution in such circumstances so as to ensure that the documents are not seen by the jury unless and until the accused person admits that he or she has received them. They do not, however, appear to me to support the submissions advanced by Mr. McCullough.

Similar considerations apply to the decision of this court in Moloney –v- Jury’s Hotel Ltd.. In that case, again, the doctors who were the authors of the medical reports had never been called to give evidence and the statements in the reports tending to discredit the plaintiff were clearly hearsay.

I am satisfied that the document was properly admitted in evidence and that this ground of appeal has not been established.

(b) The form of the questions

The plaintiff has taken issue with the form of the questions left to the jury on the ground that no distinction was drawn, in relation to question 3, between the position of RTÉ and the second named defendant on the one hand and Mr. Howard on the other hand. It was accepted that the former were entitled to rely on an answer in their favour to question 2 as determinative of their liability when the jury came to consider question 3, since in answering question 3 the jury were deciding whether the defence of partial justification available under s. 22 of the Defamation Act, 1961 had been established. Since, as ruled by the trial judge, Mr. Howard could not rely on a favourable answer to question 2 in support of his plea of justification, the argument ran, he could only have been entitled to avail of that evidence in mitigation of damage and not as establishing a plea of partial justification. Because, however, he had not in his pleadings relied on these matters in mitigation of damages, the jury should not have been allowed to take them into account in his favour with the result that the plaintiff was awarded no damages as against him. It was also argued that the evidence in question in any event was as to specific acts of misconduct alleged against the plaintiff rather than evidence of general reputation, only the latter being admissible under the rule in Scott –v- Sampson.

Order 36, Rule 36 of the Rules of the Superior Courts provides that

“In actions for libel and slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence.”

In this case, Mr. Howard had pleaded that the statement complained of was true in substance and in fact and, accordingly, it does not appear that this rule was in the event applicable. Moreover, Mr. Howard did not adduce the evidence himself by way of evidence in chief, as the rule envisages. It was evidence which was legitimately before the jury, because the plaintiff had elected to join her claim against Mr. Howard with the claim against RTÉ and the second named defendant in the same action, and not because Mr. Howard sought to adduce it in evidence himself.

I next consider the argument that the evidence should, in any event, have been excluded, because of the decision in Scott –v- Sampson that evidence of specific acts of misconduct by the plaintiff, as distinct from evidence of a general bad reputation, is not admissible in mitigation of damages. The principle is said to be based on the difficulty that any other rule would create for the plaintiff in showing “a uniform propriety of conduct during his whole life” and would give rise to interminable issues having only a remote bearing on the real issue in the case. Although it was regarded as correctly stating the law in the decision of the former Supreme Court in Kavanagh –v- The Leader, decided in 1955 and eventually reported in [2001] IR 538, there is, however, at least one older Irish authority to a different effect, i.e. Bolton –v- O’Brien [1885] 16 LR(IR) 97. Moreover, as pointed out in the decision of this court in Browne –v- Tribune Newspapers Plc. [2001] 1 IR 521, the Law Reform Commission in their report on the Civil Law of Defamation (1991) recommended that the law should be clarified by permitting the defendant to introduce in mitigation of damages any matters, general or particular, relevant at the date of the trial to that aspect of the plaintiff’s reputation with which the defamation was concerned.

It has also been held by the Court of Appeal in England in Pamplin –v- Express Newspapers [1988] 1 WLR 116 that, despite the rule in Scott –v- Sampson, the defendant is entitled to rely in mitigation of damages on any evidence properly before the jury, including evidence of specific acts of misconduct or other evidence adduced in support of an unsuccessful plea of justification.

I am satisfied that where, as here, evidence is before the jury of specific acts of misconduct which were relevant to that aspect of the plaintiff’s reputation with which the defamation was concerned, there is no reason in principle why a defendant should not be allowed to rely on such evidence by way of mitigation of damages. Since the purpose of the law of defamation is to compensate a plaintiff for damage to his or her reputation, it would be singularly unsatisfactory if a jury were obliged to award anything other than nominal or contemptuous damages to a plaintiff whom they had found in effect not to be entitled to any reputation in the relevant area. While the procedure actually adopted of, in effect, allowing Mr. Howard to rely on an answer to question 3 which was unfavourable to the plaintiff may not have been, in procedural terms, the best way of eliciting the verdict of the jury, it is clear that they could not have come to a significantly different conclusion had the questions been framed in such a way as to draw the suggested distinctions between the position of RTÉ and the second named defendant on the one hand and Mr. Howard on the other hand. If they had, such a verdict would have to be set aside as perverse or replaced with an award of nominal damages.

It may be noted that the latter was the course taken by the majority of the House of Lords in Grobbelaar –v- Newsgroup Newspapers Ltd., where the defendant newspaper had alleged that a footballer had accepted bribes and, in return for the bribes, had let in, or attempted to let in, goals during the course of games. The verdict of the jury was interpreted in both the Court of Appeal and the House of Lords as treating the “sting” of the libel as not being justified. It was also interpreted, however, as meaning that the appellant had made a corrupt agreement with and corruptly accepted money from the person in question. In the course of his speech, Lord Bingham of Cornhill said:

“The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection.”

I am satisfied that the same considerations apply in this case.

It follows that, if the failure of the trial judge to frame the questions in the manner proposed on behalf of the plaintiff constituted a misdirection by the trial judge, there was in the result no substantial wrong or miscarriage in the trial and I would reject this ground of appeal.

(c) The additional directions to the jury

The first criticism advanced of what was described as a “recharge to the jury” on day 28 was that the trial judge adopted a different approach to the plaintiff’s requisitions from that which he had voiced at the end of day 27. However, a trial judge is entitled to a considerable degree of latitude in these matters and, since he was clearly of the view that he should give further directions to the jury in the light of counsel’s submissions, that is not a ground which would justify the intervention of this court. As for the argument that it unbalanced the charge to an unacceptable degree, I think that it did no more than draw the attention of the jury to matters which were clearly of significance and which, on one view, should have been referred to in his charge the previous day. Moreover, the trial judge made it clear that he was drawing the attention of the jury to these matters because he had been requested so to do by counsel for the defendant, a factor which must be taken into account in considering any suggested lack of balance in the charge. As to the criticism that, when dealing with the aspects of Mr. Duff’s evidence to which he had been requested to draw the attention of the jury he did not point out that they had not been put to the plaintiff in cross-examination, it must be pointed out that Mr. Duff was not challenged in cross-examination on these matters.

I am satisfied that the trial judge was entitled, if he thought it appropriate, to give the further directions which he did on day 28 and that this ground of appeal has not been established.

(d) The directions as to a majority verdict

Section 95 of the Courts of Justice Act, 1924 provides that

“In every trial whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of twelve members and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the verdict. The judge shall so inform the jury and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury, without disclosure of the dissentients, if any such there be.”

The directions of the trial judge as to the necessary majority and the exchanges between himself, counsel and the foreman of the jury have been set out in full in an earlier part of this judgment. It is clear that the attention of the judge was not drawn to the decision of this court in Arnott –v- O’Keeffe [1977] IR 1.

Arnott –v- O’Keeffe was a personal injuries action which was tried by a judge and jury and which arose out of a collision between the plaintiff’s motorcycle and the defendant’s motor car. Three questions on liability were left to the jury, i.e. was the driver of the defendant’s car negligent, if so, was the plaintiff negligent and, if so, what were the respective degrees of fault between the motorist and the plaintiff. The trial judge told the jury

“You may all be unanimous in the answers you give to each question but if you cannot get all of your colleagues unanimous, you must get at least nine of the one opinion before you can write down the answer to any question. There must be at least nine …”

Counsel for the plaintiff pointed out to the trial judge that he had not told the jury that, if there were a majority, “it must be the same majority right through”. The trial judge said that he did not accept that proposition. The jury found both the motorist and the plaintiff negligent and apportioned fault between them.

The plaintiff appealed on a number of grounds, one of them being that this direction was wrong in law. It was unanimously held by this court (Walsh J., Kenny J. and Parke J.) that the trial judge had not informed the jury correctly of the requirements of s. 95 of the Act of 1924 and that this had resulted in a mistrial.

In his judgment, Walsh J. pointed out that nobody except the jury knew whether there was a lack of unanimity in respect of any matter, but the appeal had to be approached on the basis that there might have been. That also obviously applies in the present case. The learned judge went on:

“If the sole question before a jury was the simple and single one of whether the jury finds for the plaintiff or finds for the defendant, then a simple statement to the effect that at least nine of the members of the jury must be of the one opinion before the question can be answered would be sufficient. That was not this case and, nowadays, it would rarely, if ever, be the case in view of the practice insisted upon by this court that the specific and separate issues falling for a decision must be left to the jury.”

The learned judge went on to consider what the consequences might be if the view taken by the trial judge, i.e. that any nine members of the jury were sufficient to constitute the necessary majority for the purpose for answering any question, was correct. He said:

“If this were correct, it could lead to some very curious results. For example, a particular nine might be of the view that a defendant was guilty of negligence but only six of that nine might be of opinion that the plaintiff was guilty of negligence. If that six could be reinforced by the three who were in the minority on the first question then the questions would be decided by two different groups. If the first nine had prevailed, the verdict would have been one in favour of the plaintiff with no finding of contributory negligence against him. If the second group prevailed the result would be different. But what was the result when both the separate groups are operating simultaneously?

“In the days prior to 1961 when contributory negligence was an absolute offence, the plaintiff would have lost his action if the second group prevailed whereas the result would have been a finding in favour of the plaintiff on the negligence issue and a disagreement on the contributory negligence issue if the view of the first group prevailed. When one translates such a situation into a case where there are several questions the possibility of such cross-voting could give rise to such a bewildering variety of combinations and permutations that it would be utterly impossible to determine what was, in the words of the statute ‘the verdict of such nine members’. It is ‘the verdict of such nine members’ which shall be ‘sufficient to determine the verdict’.

“It appears to me that the statute clearly intended that when the jury was operating on a majority vote of nine of the twelve members the verdict should be that of a particular nine and that when the verdict depended upon the answers to several components of the verdict the answers in all cases must be those of the same nine. The Act did not preclude other members of the jury joining in the verdict, that is to say, adding their voice in support of the answers agreed upon by the particular nine on any question on which there was not unanimity. The correct direction to a jury on the matter which s. 95 of the Act of 1924 requires the trial judge to explain to them is one which informs them that, in the absence of unanimity, the verdict should be that of at least nine members of the jury and that, when there are several questions to be answered, if there is not unanimity on the way each of them is to be answered then there must be a majority of at least nine and that the same nine must concur in the answer to be given to each of the questions even though the number agreeing upon the answer is greater than nine. In this way, and in this way only, can a verdict of a jury which has depended upon the answers to several questions be said to be the ‘verdict of such nine members or upwards’.”

In his judgment, Kenny J. said:

“The verdict of the jury does not consist of their answer to any specific question. It is their answers to all the questions. This is made clear by the words ‘of such nine members or upwards shall be taken and recorded as the verdict of the jury’. It is essential that the judge should inform the jury that before they can bring in a majority verdict there must be nine members of them who agree with all the answers to the questions which have been submitted to them. It is not sufficient to justify a majority verdict that there are nine members of the jury in favour of each answer on any specific question. There must be nine who agree with all the answers; if there is not such a majority, they should be told that they should disagree.”

In his judgment, Parke J. said:

“In my view the correct instruction of the provisions of s. 95 of the Courts of Justice Act, 1924 clearly requires that the same nine members of the jury must be included in the majority answering each question and that it is the duty of the judge so to direct the jury. The ‘verdict’ is the sum total or result of any specific questions which may be asked of them. In order to constitute a ‘verdict’ there must be at least nine members of the jury who agree with the answers to all the questions.”

Two features of that case are of importance. The first is that counsel for the plaintiff, in his requisitions at the end of the charge, indicated that the appropriate direction was that the answer to each of the questions must be that of the same nine members, but the trial judge declined to accept that submission. In the second place, it was an action in negligence where the first question was as to whether the driver of the defendant’s motor car had been negligent and the second question was as to whether, if she was, the plaintiff was also negligent.

The significance of the second distinction becomes apparent when one considers the passage in the judgment of Walsh J. in which he discusses the different possibilities that could arise if the majority answering those two questions on liability was differently composed. In the typical negligence action – I am leaving out of consideration cases where defences such as inevitable accident or volenti non fit iniuria arose – a finding by the jury that the defendant was not negligent would have had as its necessary implication a finding that the accident was the fault of the plaintiff and that, accordingly, the plaintiff was negligent. If, in the example postulated by Walsh J., a minority who had concluded that the defendant was not negligent were allowed to form part of the majority finding that the plaintiff was guilty of contributory negligence, one would have a result understandably described by Walsh J. as “very curious”. Only six of the jury, on such a hypothesis, could be said to have arrived at an independent determination that the plaintiff was guilty of contributory negligence: the dissenting minority on the first question had already resolved that issue and to take them into account as part of the majority on the second question would seem entirely unjustifiable, if one was seeking to arrive at a verdict of “nine members and upwards” as required by the statute.

When one considers questions 1 and 2 in the present case, the position is different. It is, of course, the case that, if there were a dissentient minority against the plaintiff on the first question, they may be assumed to have either believed Mr. Howard or disbelieved the plaintiff. Undoubtedly, their assessment of the credibility of the plaintiff on the first question would have been a factor when they were answering the second question. They might have preferred the evidence of the plaintiff to each of the four customers concerned. Conversely, they might have preferred the evidence of any one or more of those four to that of the plaintiff. If they formed part of a majority in favour of the defendants on the second question, they could have done so as the result of an independent assessment of the respective credibility of the witnesses concerned which was not predetermined by any conclusion they may have reached on the first question.

As to question 3, it is of course possible that this question was answered unanimously. Alternatively, it may have been answered by the same majority of nine which found in favour of the defendants on question 2. In either case, no difficulty arises. It is, of course, possible though unlikely, that a minority of one or more jurors who answered question 2 in favour of the plaintiff formed part of the majority which answered question 3 in favour of the defendants. Apart from this being a somewhat unlikely possibility, it would not, in any event, have resulted in an answer by those jurors which was vitiated by the prior determination of a fundamental issue of liability, as arose in Arnott –v- O’Keeffe.

If, however, the answer to question 3 had been in favour of the plaintiff, which it was not, the majority in her favour on that answer could have included a dissentient minority of one or more who had also been in her favour in answering question 2. It would certainly seem anomalous that those members of the jury who had decided in favour of the plaintiff on question 1 and who formed a minority in her favour on question 2 could have constituted a majority against the defendants in answering question 3: since they would have already concluded that the defence of justification had failed in it entirety, it is difficult to see how they could have arrived at any conclusion against her when considering question 3.

It follows that, in the circumstances of the present case, the only significant anomaly that might have resulted from the directions ultimately given by the trial judge would have been if a differently composed majority had answered question 3 in favour of the plaintiff. That did not happen.

I have no doubt that it would have been preferable if the trial judge had directed the jury in strict accordance with the requirements of s. 95 of the 1924 Act as they were explained by this court in Arnott –v- O’Keeffe. Counsel for the plaintiff, however, expressly and unreservedly acquiesced in the directions being given by the trial judge. It is also clear that, in the light of their answers to the three questions, one can be satisfied that a majority of at least nine answered the critical questions 2 and 3 in favour of the defendants and that no anomaly of any significance would result from one or more of the dissentient minorities in the earlier questions making up the majority of nine which answered questions 2 and 3.

I would entirely accept, as Mr. McCullough in the course of his skilful arguments on behalf of the plaintiff urged, that, in civil actions as in criminal actions, the parties cannot by their apparent consent, adopt a form of trial by jury which does not meet the essentials of that form of adjudication under our law. Although they are permitted to challenge individual members of the jury either peremptorily or for cause shown, they cannot agree between themselves on the composition of the jury. They cannot by their consent ensure that the jury is composed exclusively of persons of either sex or of a particular ethnic background and they cannot agree that its deliberations are to be in public rather than in private. It may be, although it does not arise for determination in this case, that they cannot agree to a jury who would be required to reach their deliberations unanimously or by a majority of less than the nine prescribed by statute. But the essential issue in this case is whether, in the light of the directions ultimately given by the trial judge, one could conclude that the “verdict of the jury” was not determined by “a majority vote of nine of those twelve members”.

It must be assumed that the answers given to each of the three questions in this case were assented to by at least nine members of the jury. In that sense, it is beyond argument that the verdict of the jury was determined by a majority vote of nine of the twelve members as required by s. 95 of the 1924 Act. While a jury should always be told that a group of nine members should be common to each majority where more than one question is left to them, as decided in Arnott –v- O’Keeffe, I am satisfied that, in the circumstances of this case, it has not been demonstrated that any anomalous or inappropriate consequence could have resulted from the failure to give that direction in its complete form in the present case. While the situation might well have been different had counsel for any one of the parties urged the trial judge to give the direction approved in Arnott –v- O’Keeffe, I am satisfied that, in a case where the directions were acquiesced in without reservation by the party who now argues that they were incorrect, the court should not order a retrial unless it is satisfied that a substantial wrong or miscarriage resulted from the directions given. The possibility, let alone the probability, of any such wrong or miscarriage not having been established in this case, it follows that this ground of appeal also fails.

(e) Costs

The trial judge, having heard submissions, made an order for costs in favour of RTÉ, the second named defendant and Mr. Howard against the plaintiff.

While it was conceded on behalf of the plaintiff that under O. 99, Rule 1(3) of the Rules of the Superior Courts, the costs of every action are to follow the event, the rule also envisaged that the court, “for special cause mentioned in the order”, could direct otherwise. It was urged on behalf of the plaintiff that the trial judge should have found that, in two respects, there was “special cause” for determining that costs should not follow the event.

In the first place, it was submitted that it was inappropriate for the plaintiff to bear the costs incurred by Mr. Howard and that he should have been required to pay the plaintiff’s costs or that, at the least, there should be no order as to costs between the plaintiff and Mr. Howard. It was submitted that the finding of the jury that the defendants had not proved that the plaintiff induced Mr. Howard to evade his tax obligations constituted a “special cause” for so providing in the order as to costs. It was said that this finding was “of immense significance” to the plaintiff and that, in these circumstances, she had, in the terminology employed by the English Court of Appeal in Roache –v- Newsgroup Newspapers Ltd. [1998] EMLR 161 and Reynolds –v- Times Newspapers Ltd. [1998] 3 All ER 961, obtained “something of value” in the form of the answer to question 1, to obtain which she had to institute the proceedings. Given that, in the correspondence which preceded the initiation of the proceedings, it had been made clear that the plaintiff was not seeking damages from Mr. Howard and was merely seeking a retraction and apology and that Mr. Howard persisted in his defence and throughout the trial in his claim that the allegations were true, it would be inappropriate for the plaintiff to suffer in costs where the jury had found his allegation not to be true.

It was also urged that the trial judge should have taken into account the fact that Mr. Howard had been indemnified by RTÉ in respect of both costs and damages and that, in the result, there was no need for two legal teams to be employed effectively on behalf of RTÉ.

Secondly, it was submitted that the order for costs in favour of RTÉ and the second named defendant should have reflected the fact that the broadcast by RTÉ of Mr. Howard’s allegation was the central matter that led to the initiation of these proceedings. It was also urged that a considerable amount of time at the hearing had been occupied by evidence and submissions as to the allegations made by Mr. Howard. In these circumstances, it was submitted that the trial judge should have held that there was “special cause” for making no order in favour of costs to RTÉ and the second named defendant or, in the alternative, a limited order for costs only.

The order for costs in this case was essentially a matter within the discretion of the trial judge and this court should only intervene if satisfied that he proceeded on some erroneous principle of law in ordering the plaintiff to pay the costs of all three defendants. I am satisfied that there was no such error of law in his approach. It is acknowledged that prima facie the principle that costs followed the event applied and he was entitled, in my view, to hold that circumstances relied on by the plaintiff did not constitute a “special cause” within the meaning of O. 99 r. 1(3).

In the language traditionally used in actions for libel and slander, the “sting” of the alleged libel in this case was that the plaintiff, while in the employment of NIB, had advised or encouraged one or more customers or potential customers of the bank to evade their tax obligations by concealing money in particular investment portfolios. The jury found that this allegation was true in substance and in fact in the case of one or more of those customers and that, in the result, her reputation had not been materially injured by the allegation, found by the jury not to have been proved, that she had advised or encouraged Mr. Howard to evade his tax obligations. The plaintiff had instituted the proceedings in order to vindicate her reputation and the jury having found that there had been no injury to her reputation, it followed that the purpose of instituting the proceedings had failed in the case, not merely of RTÉ and the second named defendant, but also of Mr. Howard. It must also be borne in mind that it was the plaintiff who elected to join Mr. Howard in the proceedings and, while she was entitled so to do, she could equally have vindicated her reputation by suing RTÉ and the second named defendant alone. In joining Mr. Howard in the proceedings, she accepted the risk that, in the event of the action failing against him, he would be entitled to recover his costs against her.

I am also satisfied that, for the same reason, the fact that RTÉ chose to indemnify Mr. Howard in respect of his costs is not relevant in determining whether the plaintiff should pay those costs. Having elected to sue Mr. Howard in these proceedings, he was entitled for his part to be separately represented and any arrangements he succeeded in making with any other party in relation to the payment of his costs had no bearing on the plaintiff’s ultimate liability in respect of those costs, in the event of her claim against Mr. Howard failing.

I am also satisfied that there is no substance in the plaintiff’s submission that there should be no order for costs or, at best, a limited order for costs in favour of RTÉ and the second named defendant because the jury decided the first question in her favour. Since the “sting” of the libel relied on was the allegation that the plaintiff had advised one or more persons to evade their tax obligations and the plea of justification on behalf of RTÉ and the second named defendant was critically not confined to the allegation in respect of Mr. Howard, it followed inevitably that the fact that the jury answered question 1 in favour of the plaintiff provided no basis for making a limited award of costs only in favour of RTÉ and the second named defendant. Ultimately, the findings in favour of those defendants on those questions was what essentially determined the outcome of the case, i.e. a failure on the part of the plaintiff to satisfy the jury that her reputation had been materially injured by the untrue allegations in respect of Mr. Howard, given their finding that she had advised or encouraged one or more other customers or potential customers to evade their tax obligations.

I am satisfied that, in these circumstances, there is no ground for interfering with the exercise by the trial judge of his discretion as to costs.

I would dismiss the appeal and affirm the order of the High Court.