Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The High Court of Ireland held that the Irish Horseracing Regulatory Board’s (IHRB) head of security Chris Gordon had been defamed by the Irish Racehorse Trainers Association (IRTA). The case originates from a joint inspection of the yard of horse trainer Liz Doyle by the IHRB and the Department of Agriculture as part of an investigation into the use of performance enhancing drugs. The IRTA alleged that Mr. Gordon had tried to entrap Ms. Doyle into admitting her association with John Hughes, who had already pleaded guilty to possession of anabolic steroids. Mr. Gordon argued that seven defamatory publications by the IRTA evidence a “campaign by the Defendant to have him removed from his post as head of security.” [para. 4] The defendant sought to rely on the defense of qualified privilege in five of the impugned statements, requiring a balance between the competing constitutional rights to free expression and a good name. In Gordon v Irish Racehorse Trainers Association (No1)  IEHC 363 (04 March 2020), the defense of qualified privilege was not struck out. In Gordon (No 2) (20 March 2020), Barton J found that there was sufficient evidence to enable the jury to consider whether the defense would be defeated by express malice. The jury found malice in five of the publications and Mr. Gordon was awarded damages of €300,000. In Gordon (No 3) (09 September 2020), Barton J awarded Mr. Gordon “the full costs of the action”, amounting to almost €1.6 million.
The Plaintiff in this case, Chris Gordon, is a retired policeman and head of security with the Irish Racehorsing Regulatory Board (IHRB), formerly known as the Turf Club. The Defendant is the Irish Racehorse Trainers Association (IRTA).
On March 26, 2014, Mr. Gordon led a joint inspection of the yard of Liz Doyle, a racehorse trainer and member of the IRTA. The inspection was part of an investigation into the use of anabolic steroids in horse racing. The exact nature of what transpired in the yard is contested. Mr. Gordon alleges that Ms. Doyle’s name was listed on a lodgment docket used as evidence against John Hughes for possession of anabolic steroids, which was presented to Ms. Doyle on inspection at her property. Ms. Doyle claimed, in her testimony, that Mr. Gordon had shown her a piece of paper during the search on which her name was absent. The Court noted that it was not in dispute that Ms. Doyle’s name does not appear on the original lodgement docket obtained in the book of evidence against Mr. Hughes. Mr. Denis Egan, chief executive of the IHRB, submitted to the Court that he had written “Liz Doyle?” on the copy of the lodgemont docket given to him.
On June 12, the first of the impugned statements was published. Mr. Frank Ward solicitor, acting on behalf of the Defendant, wrote a letter of complaint to the senior steward of the IHRB requesting an immediate investigation into Mr. Gordon’s behaviour in carrying out the inspection. The letter claimed that Mr. Gordon had acted “in the hope of entrapping Ms. Doyle into admission of some wrongdoing which might jeopardise and destroy her professional reputation as a horse trainer.” [para. 17] Mr. Gordon claimed that IRTA committee member Michael Grassick made false claims regarding his conduct following complaints from two other trainers. In addition, Mr. Grassick and two other IRTA members allegedly met with representatives of the IHRB and maliciously published statements seeking Mr. Gordon’s removal. As a result, the IHRB held an inquiry that found Mr. Gordon had done nothing wrong. Nevertheless, Mr. Gordon submitted that his duties had been restricted since 2015. In total, there are seven impugned statements, five of which were met with a plea of qualified privilege.
The two statements not under qualified privilege were an alleged petition to have the Plaintiff removed as head of security of the IHRB and an article published in ‘The Irish Field’ on August 9, 2014. In the impugned article, the IRTA chairman Noel Meade stated that members were angered by the conduct of some officials during inspections carried out at horse trainers’ premises during an interview with ‘The Irish Field’. Mr. Meade stated that there was a “little Hitler syndrome” in which trainers were treated as if they were already guilty from the start. The Defendant submitted that there was no evidence the petition existed and that the interview of Noel Meade was not made on behalf of the IRTA, nor was he referring to the Plaintiff.
Mr. Gordon claimed that he had been the subject of an orchestrated campaign against his good name by the IRTA. In Chris Gordon v. The Irish Racehorse Trainers Association (No 1)  IEHC 363 (04 March 2020), Barton J declined to strike out the IRTA’s defense of qualified privilege.
In Gordon (No 2) (20 March 2020), Mr. Gordon claimed that the five impugned statements were made by the Defendants with express malice. The Defendants’ principle ground for withdrawing the case was that there was insufficient evidence for the jury to find as a matter of probability that the Defendant was actuated by malice.
Mr. Justice Bernard J. Barton delivered the judgment of the Court.
The main issue before the Court was whether or not there was sufficient evidence for the jury to find that the Defendant was acting with malice at the time of the five relevant publications. This assessment required Barton J. to balance the constitutional right to freedom of expression and the right to a good name under Article 40 of the Constitution.
The Court first recalled that there is a complete defense to a claim for defamation if the defamatory statement was on occasion of qualified privilege unless the Defendant “was actuated by legal malice at the time of publication.” [para. 6] The existence of malice is left to the jury where the trial judge is satisfied that “the existence of malice as a matter of probability is an inference which the jury would be entitled to draw from the evidence.” [para. 7] The Court cited the judgment of O’Byrne J., in Kirkwood Hackett v. Tierney  I.R. 185, who set out the test of malice: “a trial judge should leave an issue of malice to the jury only if he was satisfied that the evidence given was more consistent with the existence of malice than with its absence.” [para. 9]
The burden of proof with regard to the defense of qualified privilege is carried by the Defendant, that is to say that the defendant must prove that the person making the statement believes that the recipient has a duty or interest in receiving it.However, once the Plaintiff had conceded that five of the impugned statements were published on qualified privilege, the Plaintiff carried the burden for sufficiency of evidence of malice. Barton J. noted that this burden is “a heavy one, and with good reason.” [para. 22] Once demonstrated, the defense of qualified privilege “amounts to a vindication of the constitutional right to freedom of expression” despite the fact that the defamatory statement “is injurious to the claimant’s right to a good name also guaranteed under Article 40 of the Constitution.” [para. 22]
Barton J. first considered the third impugned statement: the article published in ‘The Irish Field’ on August 9, 2014. There was no plea of qualified privilege for this statement. Rather, the Defendant claimed that the publication “was not made by, on behalf of, or with the authority of the Defendant.” [para. 39] According to the Defendant, while Mr. Meade had been interviewed because of his position as chairman of the IRTA, his views were personal and not made in reference to the Plaintiff. Barton J. noted that it was “abundantly clear” that Mr. Meade “spoke in the plural rather than in the singular person” and accordingly spoke on behalf of the Defendant organisation. [para. 42] There was additionally no distinction made by Mr. Meade between his personal opinions and that of the Defendant. Barton J. concluded that there was evidence which, if accepted by the jury, would entitle them to find that Mr. Meade made the impugned statements on behalf of the IRTA and that he made them in reference to the Plaintiff. Accordingly, the Court refused the application to withdraw the case in respect of the third statement.
The Court then considered the fourth impugned statement: the petition created and circulated by the Defendant to remove the Plaintiff as head of security of the IHRB. Three witness statements were provided on behalf of the claim, which were dismissed by the Defendant as “more or less hearsay.” Barton J. concluded that there was “no admissible evidence the alleged petition ever existed and any finding by the jury to that effect would be wholly wrong.” [para. 51] Therefore, the Court accepted the Defendant’s application to withdraw the case with regard to the fourth statement from the jury.
The Court proceeded to the fifth publication: a meeting at the Keadeen Hotel on August 15, 2014 between the Doyles, representatives of the IHRB and the IRTA. The Defendant claims that the meeting was arranged so that the Doyles could “give their account of what had transpired in Liz Doyle’s yard.” [parra. 60] The Plaintiff, however, claims that he was defamed by allegations of misconduct in the meeting with calls for his removal as head of security at the IHRB. It was already accepted by the Plaintiff that the publication of the impugned statements was on an occasion of qualified privilege. Barton J. noted that if an individual arranges or attends a meeting to enable others to make statements concerning a third person “about which they are aware of have reasonable grounds for believing will likely be made” and such defamatory statements are made, those who arranged the meeting are “concurrent wrongdoers with the authors and publishers and are jointly and severally liable with them in damages.” [para. 62] Barton J. was satisfied that representatives of the IRTA knew “what was likely to be said at the meeting, they condoned and supported it.” [para. 63] Accordingly, the Court refused the application to withdraw the case from the jury with respect to the fifth statement.
Finally, the Court considered the first, second, sixth and seventh statements together, all of which were under qualified privilege. The first and second publications arose following the inspection of Ms. Doyle’s yard on March 26, 2014. On June 12, 2014, a letter was written by a solicitor acting on behalf of the Defendant to the senior steward of the IRTA requesting an investigation into the behaviour of Mr. Gordon. The letter claimed that Mr. Gordon was acting “in the hope of entrapping Ms. Doyle into an admission of some wrongdoing which might jeopardise and destroy her professional career as a horse trainer.” [para. 17] It was also alleged that the IRTA published to its solicitor “words carrying the same imputation.” [para. 17]
Barton J. noted that the defense of qualified privilege “is underpinned by public policy grounded in the State’s obligation to vindicate as best it may the fundamental rights of the citizen guaranteed by Article 40 of the Constitution,” the right to a good name. [para. 70] The prerequisite to the defense is the existence of a defamatory statement “about another whose right to a good name is also guaranteed.” [para. 70] The decision that arises for a Court is to “strike a fair balance between competing constitutional rights.” [para. 70] Considering the statements at hand, the Court found that “the jury could be left in no doubt but that the Defendant adopted the belief of the Doyles as its own and did so without inquiry.” [para. 73] The material consideration of the Court was whether the circumstances of Ms. Doyle’s claims called for an enquiry by the IRTA, when determining the honesty of the Defendant’s belief at the time of publication. Barton J. was satisfied that there was evidence if accepted by the jury that demonstrated the Defendant’s “recklessness in the legal sense and/ or indifference to the truth.” [para. 83] Accordingly, the Court refused the application to withdraw these statements from the jury.
In conclusion, the Court found that there was a campaign by the Defendant to “at the very least ‘clip the Plaintiff’s wings’ to the point of neutralising or rendering nugatory his interaction with the members of the Defendant association.” [para. 84] All applications for the statements to be withdrawn, aside from the fifth, were refused.
The jury then found that Mr. Gordon proved the IRTA did not have an honest belief in the truth of the entrapment allegation, first made in a letter from the IRTA’s solicitor to a senior racing steward. It also found that Mr. Gordon had proven that Mr. Meade was speaking on behalf of the IRTA when he was quoted in ‘The Irish Field’ article and the reader would have understood those statements to refer to Mr. Gordon. It found that the IRTA, without any honest belief in the allegations made by the Doyles, caused their repetition to members of the IRTA at a meeting in August 2014. Finally, it found that the IRTA, in bad faith and with the purpose of injuring Mr. Gordon, passed on to the IRTA chief executive a complaint from a trainer concerning Mr. Gordon. On this basis, the jury assessed general damages at €200,000, aggravated damages at €50,000 and exemplary damages of €50,000 as the Defendant’s publications were known to be malicious.
In Gordon (No 3) (9 September 2020), the Court accepted the Plaintiff’s application for the costs of the action, amounting to almost €1.6 million.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case is one of several Irish defamation cases that seek to balance the constitutional right to freedom of expression with the constitutional right to a good name. Barton. J commented that “the defense of qualified privilege amounts to a vindication of the constitutional right to freedom of expression notwithstanding the defamatory nature of the statement is injurious to the claimant’s right to a good name also guaranteed under Article 40 of the Constitution.” [para. 22] In this case, despite the high burden of proof for malice to overturn the defence of qualified privilege, the judge and jury decided in favour of the Plaintiff’s right to a good name.
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