We must all express relief that Judge Joseph Mangan of Ennis has had his reputation vindicated by the High Court in Dublin. A reputation is a precious thing, especially for a judge, and it is not to be paltered with lightly.
Judge Mangan was the subject of an article by Gene Kerrigan in the Sunday Independent after the judge had received a phone call on court business while presiding over a case in his own court. Some 17 months later he sued the Sunday Independent over Gene Kerrigan's observations. While this is perfectly within the legally allowable time to take a court action, such a delay does not indicate a desire for immediate vindication of his good name.
Nor indeed does his choice of court. If he had sought redress in the Circuit Court, with its more informal manner, the matter would have been dealt with more expeditiously, and his reputation vindicated all the sooner. He did not. He chose to defend his reputation in the High Court, where procedures are lengthier, and both costs and potential damages are far higher.
Retrial ordered
This is his right. But it is a slower way of having your good name vindicated than by using the Circuit Court. And when the case finally came before the High Court, it lasted only two days before Judge Mangan's counsel successfully argued that the jury should be dismissed and a retrial ordered because of remarks made by counsel for the defendants, Independent Newspapers.
The Supreme Court has ruled that the judge was wrong so to have ruled, but this did not mean that Independent Newspapers were spared the costs of their two days in court - and in the more expensive High Court at that, rather than the cheaper and more expeditious Circuit Court.
At the second trial last week, the jury rejected four of the judge's complaints about Gene Kerrigan's article. But it accept a fifth - that the article bore the defamatory meaning that Judge Mangan had acted in a manner inconsistent with the proper discharge of his judicial functions.
But it awarded him damages of only €25,000, which could have been awarded in the lower court. On Wednesday last, the trial judge, Miss Justice Carroll, ruled that Independent Newspapers should pay the plaintiff the costs that he would have been due had he pursued the case for the same amount of time in the lower court, though the latter is normally more expeditious.
His counsel, Garrett Cooney SC, then declared that the plaintiff's lawyers would only be charging Judge Mangan at a rate appropriate to the lower court, that is, the amount Independent Newspapers were liable for.
But Independent Newspapers had been obliged to defend itself at a more costly level, and through two trials, though damages awarded against it were appropriate to a lower and less expensive court. In other words, the plaintiff, Judge Mangan, who chose to defend his good name through a more expensive judicial process, is spared the financial consequences of his actions; but not so the defendants, who were obliged to pay their costs at High Court level, and twice over.
Primary factor
Legal costs, far more than simple facts, are commonly the primary factor in assessing the prudence of pursuing a case. For costs invariably exceed damages, and sometimes by factorial degrees, at which point they, and not the damages awarded, become the real issue, and indeed the real weapon, in a trial. Thus punishment is twofold: it is inflicted by the jury, in terms of damages, and by the judge, in terms of costs.
In this particular case, the plaintiff chose to vindicate his good name by a slow though potentially more financially rewarding case through the High Court, where costs are higher. However, he has been able to claim back from Independent Newspapers only the costs that he might have got had he taken the case at the cheaper level.
The difference between those costs and the actual costs has been waived by his legal team. Clearly, his lawyers would have exacted full costs had damages been appropriate to the higher court. This is not a matter of pro bono representation, when barristers work for free to enable a client of modest means get access to the law. Here, an experienced lawyer of ample means simply chose to take his case in a higher court than necessary.
Services provided
He made a mistake. Too bad. We all do sometimes. Nonetheless, services have been provided. On this occasion his legal team has chosen only to charge fees liable on the Independent, but not for their services to him over and above that. Yet surely the matter doesn't end there. His lawyers provided him with an expensive service, not normally available to the rest of us. Is that service immune to the normal taxation laws governing the provision of goods, services and fees? After all, if someone is liable for taxation for unpaid work done on his house, might Judge Mangan not also be liable for tax for unpaid legal work done on his behalf, especially since both client and counsel stood to make a great deal more money if they had jointly been more successful in their plea?
Judge Mangan's court action shows that he is an honourable man, keen to defend his honour, no matter the cost. No doubt those impeccable guardians of the public weal, the Revenue Commissioners, are at this moment preparing a tax bill for the judge for legal work done on his behalf; and I'm sure that as an honourable man he will be more than happy to receive it.