Reynolds v Times Newspapers Ltd

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE,LORD JUSTICE HIRST
Judgment Date08 July 1998
Judgment citation (vLex)[1998] EWCA Civ J0708-1
Docket NumberQBENF 96/1752/1,QBENF 97/0149/1
CourtCourt of Appeal (Civil Division)
Date08 July 1998
Between:
Albert Reynolds Td
Plaintiff/Appellant
and
(1) Times Newspapers Ltd
(2) Alan Ruddock
(3) John Witherow
Defendants/Respondents

[1998] EWCA Civ J0708-1

Before:

The Lord Chief Justice of England

(Lord Bingham Of Cornhill)

Lord Justice Hirst and

Lord Justice Robert Walker

QBENF 96/1752/1

QBENF 97/0149/1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE FRENCH)

Royal Courts of Justice

The Strand

London

MR ANDREW CALDECOTT QC and MR BEN HINCHCLIFF (instructed by Messrs Crockers Oswald Hickson, London EC4 3EX) appeared on behalf of THE APPELLANT

LORD LESTER OF HERNE HILL QC, MR JAMES PRICE QC and MS EMMA DIXON (instructed by Messrs Theodore Goddard, London EC1A 4EJ) appeared on behalf of THE RESPONDENTS

Wednesday 8 July 1998

THE LORD CHIEF JUSTICE

INTRODUCTION

I

This is the judgment of the court to which all members have substantially contributed.

This is an appeal by the plaintiff, Mr Albert Reynolds, seeking a new trial in a libel action which was heard by French J sitting with a jury. The outcome was that Mr Reynolds was awarded 1p damages and was ordered to pay the defendants' costs as from the date of a payment into court. The defendants (Times Newspapers Ltd as publisher of the Sunday Times and the individuals who were at the material time editor and Irish editor of that newspaper) have a cross-appeal raising important issues as to qualified privilege, and a further cross-appeal relating to costs down to the time of the payment-in. The libel action was concerned with the political crisis in Dublin in November 1994 which culminated in the resignation of Mr Reynolds as Taoiseach (prime minister) and leader of Fianna Fail. Before going further into the issues in the appeal and cross-appeals it is necessary to summarise the course of the political crisis and also the course of the proceedings in the libel action.

Mr Reynolds had been a member of the Dail Eireann since 1977. In February 1992 he became Taoiseach, heading a coalition of his own party (Fianna Fail) and Labour under Mr Dick Spring. Mr Spring was Tanaiste (deputy prime minister) and minister for foreign affairs. As is well known, during the course of this coalition Mr Reynolds and Mr Spring together did much to promote the Northern Ireland peace process. The future of the coalition was a matter of public interest in Great Britain as well as in Ireland.

However the coalition had its tensions and difficulties. The final difference, which developed into the political crisis at the centre of this case, was over the Attorney-General, Mr Harold Whelehan S.C., and the inaction of his office in the matter of an extradition warrant. Mr Whelehan had been appointed as Attorney-General in September 1991 and had become a rather controversial figure. (Under the Irish Constitution the Attorney-General acts as an impartial legal adviser to the government; he regularly attends cabinet meetings but does not sit in the Dail and is not a member of the government.) Since about October 1993 Mr Reynolds and Mr Spring had been discussing forthcoming vacancies in the senior judiciary, including an expected vacancy in the office of the President of the High Court (the second highest judicial office in the Republic) if, as in fact occurred, the incumbent President was appointed as Chief Justice. Mr Reynolds favoured the appointment of Mr Whelehan. Mr Spring was initially against the appointment but then took the position that he would not oppose it if there was a comprehensive review of the system of judicial appointments and a new Court of Appeal.

The fragile understanding over the appointment of Mr Whelehan was then shaken and destroyed by the Smyth affair. Father Brendan Smyth was a Roman Catholic priest wanted by the Royal Ulster Constabulary on charges of sexual abuse of children in Northern Ireland. An extradition warrant prepared by the R.U.C. had been in the Attorney-General's office for seven months without any substantive action being taken on it. The matter was exposed in the Irish press in October 1994. It received wide publicity and caused wide public concern. It raised a new issue as to the suitability of Mr Whelehan for appointment as the Republic's second senior judge.

The appointment was to have been discussed at a meeting of the coalition cabinet on Thursday 10 November, but a terrorist incident at Newry preoccupied the cabinet on that day and a further meeting was arranged for Friday 11 November. Before that meeting Mr Reynolds had obtained from Mr Whelehan a written memorandum dated 9 November in which Mr Whelehan sought to explain the handling by his office of the request for the extradition of Fr Smyth. That memorandum (which ran to some ten pages) stated that Mr Whelehan himself had been unaware of the warrant, that the matter did not appear to be urgent, and that there were several legal issues to be considered, including paragraph (bbb) of section 50(2) of the Republic's Extradition Act 1965 (that paragraph having been added by the Extradition ( Amendment) Act 1987). The memorandum stated,

"This provision …. had never had to be applied until this case. My interpretation of its meaning and effect would establish the criteria which would be applied in this office for future requests, whether for simple burglary or for serious subversive offences."

At the cabinet meeting on Friday 11 November Mr Reynolds supported Mr Whelehan's appointment as President but Mr Spring and his Labour colleagues opposed it. When Mr Reynolds persisted and said that he intended to invite Mrs Maire Geoghegan-Quinn, the minister for justice, to move Mr Whelehan's appointment, Mr Spring and the other Labour ministers withdrew from the meeting (so ensuring that their absence would be minuted; an adverse vote in the cabinet would not be minuted). Despite their withdrawal the Fianna Fail members of the cabinet decided on the appointment and Mr Whelehan (who was in attendance at the cabinet meeting but not present for the discussion of his appointment) was that evening appointed as President of the High Court by Mrs Mary Robinson, the President of the Republic. He was not however sworn in on that day. Mr Eoghan Fitzsimons S.C. was appointed as the new Attorney-General.

Two significant events occurred during the course of the weekend. On the Sunday evening there was a meeting of the Labour parliamentary party at which the Labour deputies decided to attack Fianna Fail over the Smyth affair and the lack of accountability in the Attorney-General's office. The meeting was followed by a press conference. On the same day (and either in anticipation or in consequence of the Labour decision) Mr Reynolds, through Mrs Geoghegan-Quinn, asked the new Attorney-General to undertake a full and urgent investigation of the Smyth file, and Mr Fitzsimons telephoned some of the officials in the Attorney-General's office in order to put the investigation in train first thing on Monday.

The political crisis developed and reached its climax during the next three days (and nights): Monday 14, Tuesday 15 and Wednesday 16 November. In brief summary (more detail will have to be added in considering the Judge's summing-up) Mr Fitzsimons discovered on the Monday that there was an earlier case in which section 50(2)(bbb) had been considered, and moreover had been considered by Mr Whelehan. This was the Duggan case, although the new Attorney-General did not know (or could not recall) its name until prompted by Mrs Geoghegan-Quinn from notes which she had. This information was conveyed orally to Mr Reynolds on the same day but without any clear advice as to its significance. Mr Fitzsimons indicated that a senior civil servant in his office was taking a different view from that which he (the new Attorney-General) was disposed to take. Mr Reynolds said that he did not want 'on the one hand, on the other hand' advice and asked Mr Fitzsimons to discuss the matter with Mr Whelehan and to produce definitive written advice. Mr Fitzsimons was told of potentially grave consequences for Mr Whelehan and was asked to request Mr Whelehan to postpone his swearing-in as President of the High Court. Mr Fitzsimons saw Mr Whelehan that evening. He declined to postpone his swearing-in.

On the Tuesday morning Mr Fitzsimons did further work on the Smyth and Duggan cases and prepared an answer (to the question 'Was this the first time that the section was applied?') to be given in the Dail by the minister for justice, Mrs Geoghegan-Quinn. His morning's work was interrupted by his attendance at Mr Whelehan's swearing-in at the Four Courts. Mr Whelehan gave Mr Fitzsimons a letter setting out his (the former Attorney-General's) position. Mr Fitzsimons delivered his written advice and the draft answer to the Taoiseach's office, but by then (about 2.25p.m.) Mr Reynolds had left his office for the Dail chamber.

On the Tuesday afternoon Mr Reynolds, who had not himself received Mr Fitzsimons' written advice, made a statement in the Dail which was broadly supportive (although by no means wholly uncritical) of Mr Whelehan. Mr Reynolds said that he was giving a full account. He spoke of a failure in "the system" within the Attorney-General's office. He made no reference to the Duggan case. Then on the Tuesday evening after the debate was over Mr Reynolds read Mr Fitzsimons' written advice. On reading it he was agitated and upset (in his own words, he 'hit the roof'). He decided that he must make a further statement to the Dail. Mr Fitzsimons was asked to visit Mr Whelehan again and invite him to resign as President of the High Court. The President declined to resign. Mr Fitzsimons joined Mr Reynolds for discussions and...

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