A jury this week found against a man seeking damages from The Irish Times and three other newspapers arising from reports published 22 years ago that, he claimed, defamed him.
Kevin Tracey lodged his High Court claims in December 2008 over reports published in September 2004 in The Irish Times, the Irish Independent, the Evening Herald and the Irish Daily Star.
The case, in which Tracey was a lay litigant – meaning he did not use a lawyer but instead represented himself – took almost 18 years to be heard for various reasons including hearings before the Court of Appeal and the Supreme Court.
The Supreme Court appeal, where Tracey successfully challenged a decision of the High Court in favour of the newspapers to strike out his claim, took eight years before a decision was reached.
On a separate matter, the Court of Appeal decided in favour of the newspapers on whether the four claims should be dealt with in the High Court at the same hearing and separately ruled that a legal issue the newspapers wanted decided on as a preliminary issue should be determined at the High Court trial.
At the centre of the case were reports about a Dublin District Court hearing where Tracey, an engineer living at Park Lane in Chapelizod, west Dublin, was charged with assault arising from a confrontation with a neighbour, Gabby Skinner, whose children were among a number of children playing ball outside Tracey’s home.
During the confrontation Skinner was pushed by Tracey, who denied touching her.
The judge in the case, Michael Connellan, said that as far as he was concerned “there was an assault on Mrs Skinner, but it was of a very technical nature”.
The report in The Irish Times stated Tracey had been convicted of assault. The report stated that the judge had granted leave to appeal, “saying that even though there was no penalty, the Probation Act was still a criminal conviction”.
The reports published in the other newspapers were broadly similar. All the reports were written by court reporter Tim Healy, who wrote his reports using shorthand notes he took on the day in court.
Tracey wrote to the newspapers in the wake of the reports, claiming he had been defamed, as the application of the Probation Act meant he had not been convicted.
He sought a statement on the front page of each newspaper that he had been defamed and a payment of €1.5 million from each title. He was offered a clarification, though not an apology, by the Irish Independent, in August 2008, but did not accept that.
The defamation case was heard before Judge Tony O’Connor over five days and the jury gave its decision on Wednesday after just 48 minutes of deliberation.
All the newspapers were represented by the same barrister, Eoin McCullough, though separate barristers and solicitors acted for The Irish Times and the other publishers.
McCullough argued that reports of court hearings had “absolute privilege” under defamation law and that as long as they were fair and accurate reports of what had happened in court, they were protected from defamation claims.
“So in a case of absolute privilege all we have to show is that this was a fair and accurate account of what Judge Connellan said on 16th September, 2004,” he told the jury.
“You are not concerned with anything else except that.”
The judge made the same point in his charge to the jury before they went out to consider their decision.
Newspapers, O’Connor said, report what was said. “They don’t get involved in interrogating whether [what was said] was rightly said or not.”
The only witnesses in the case were Tracey and Healy. Tracey, in his address to the jury, said Connellan had dismissed the charge against him using the Probation of Offenders Act 1907.
“I was clearly not convicted. These false publications defame me and were unfair and inaccurate,” he said.
“I am not asking you to disregard the finding, made by the District Court, that the facts were proved,” he said.
“I am asking you to distinguish between findings of fact proved and a formal criminal conviction. The newspapers reported a conviction.”
The jury was given “issue papers” containing the two questions about each newspaper.
The first was whether the report published by the newspaper was a fair and accurate report of what was stated by Connellan in the 2004 District Court sitting.
The second, concerning the amount of damages Tracey should be awarded, was only to be answered if the jury’s answer was no to the first question.
In the end, the jury decided after its very brief deliberations that the answer was yes to the first question for each of the newspapers.
As a consequence, the second question of damages did not arise.
A key item of evidence in the case was Healy’s notes, in a spiral backed notebook, that recorded the words attributed to the judge in the September 2004 case. The same notebook contained notes from other court cases before and subsequent to the date of the Tracey case.
When Healy was being questioned by Tracey, the reporter was asked if he knew there was a machine that could remove a spiral binding, allow a person to slip new pages into a notebook and then replace the binding.
“I didn’t know it was possible and I didn’t know there was a machine so that’s certainly of interest,” Healy replied.
Asked to explain the sentence in his notes that recorded Connellan saying, “the Probation of Offenders Act is a conviction but it does not carry any penalty,” Healy said: “The judge said it. You would have to ask him.”
In the reports written by Healy it was stated that Tracey had in 2003 taken a case against his next-door neighbour, Circuit Court judge Michael White, complaining of noise nuisance arising from White’s children playing musical instruments.
The complaint was withdrawn before it came to hearing but Tracey was ordered to pay €1,500 in legal costs because he failed to turn up in court to say he was withdrawing his complaint, Healy reported.
When it was his time in the witness box, Tracey was questioned about conspiracy proceedings he had initiated in 2008 against 23 people, including Connellan.
In the proceedings Tracey claimed the Skinner assault charge had been “orchestrated” against him by his neighbour, White, and that the defendants, who included the then minister for justice, Garda commissioner, Director of Public Prosecutions, and others, including Skinner, had all either committed perjury or conspired against him.
In 2010 Judge Peter Charleton in the High Court found in favour of the defendants where they had argued that the conspiracy claim was frivolous and vexatious and should be dismissed.
The judge said the claim was motivated by Tracey’s desire to overcome the “finding of fact” in the 2004 District Court assault case.
In the defamation hearing McCullough asked Tracey about the conspiracy case.
“Did you maintain the proposition that all this was a conspiracy against you?” he said, meaning the assault charge.
Tracey said he did.
Asked if he still did, Tracey said: “I still do. Yeah.”
After the jury delivered its verdict, O’Connor directed that Tracey pay the legal costs incurred by the newspapers. Tracey said he wanted to reserve his right to appeal.