In 1954 poet Patrick Kavanagh took a disastrous libel action against a magazine

26 Jun 2018 / people Print

Who framed Patrick Kavanagh?

In late 1939, as German forces marched into Polish territory, a solitary, 35-year-old Irish poet, novelist and critic marched 80 miles from his small farm holding in Mucker, Co Monaghan, to Dublin.

In contrast to the German, Polish, Soviet and Slovakian soldiers engaged in the beginnings of WW2, Patrick Kavanagh was armed only with high hopes of participating in an ‘Irish Revival’ of literary and cultural enlightenment.

Nine years after the unconditional surrender of the Axis powers in 1945, Kavanagh would constructively surrender his high hopes, having spent a total of 15 years struggling to make ends meet and to gain secure employment and acceptance by the established cliques in Dublin. He mused that, while poems were popular, no one cared if the poet ate.

His bitterness and disillusionment can be gleaned from the short-lived 13-issue publication run of Kavanagh’s Weekly: A Journal of Literature and Politics between April and July 1952.

Financed by £2,000 from his younger brother Peter, the Weekly criticised the lack of vitality in Ireland in the 30 years after Independence: “All the mouthpieces of public opinion are controlled by men whose only qualification is their inability to think.”

Further criticism was heaped on Radio Éireann, the GAA, the Abbey Theatre, the Arts Council, and the Cultural Relations Committee (established by Sean McBride in 1949). Kavanagh suggested that Ireland might benefit from reducing its civil service to “one-tenth its size” and the “so-called” revival of Irish should be abandoned.

He opined that the presidency should be made an honorary post at a nominal salary, and that the number of Irish embassies abroad should be reduced.

The usual suspects

In October 1952, The Leader magazine published an unsigned, one-sided, unflattering profile of Kavanagh. Kavanagh failed to unmask the author(s) of the offensively hostile piece, with Valentin Iremonger (Irish career diplomat and poet, who also produced translations from the Irish language) and Brendan Behan among his (many) suspects.

The profile caricatured Kavanagh “hunkering over a bar stool” in McDaid’s, presiding over a coterie of much younger submissive acolytes, sponging drinks, coughing and gambling, while fantasising about London’s literary scene. It depicted Kavanagh as a poseur, unsubtle, opinionated, and overbearing. It also contained a (false) suggestion that his poem The Great Hunger had been banned in Ireland.

Kavanagh issued libel proceedings against the magazine and its printer, hoping for an out-of-court settlement of some £500. He had already lost a libel action taken against him in 1938 by Oliver St John Gogarty, who was awarded £100 damages plus costs of £300 over a reference in Kavanagh’s loosely autobiographical book The Green Fool, suggesting Gogarty had a mistress.

On 3 February 1954, the 49-year-old Kavanagh sat in the witness box in the Dublin High Court, waiting for the first of a total of 1,267 questions in what would be a gruelling 13-hour cross-examination by a man 13 years his senior – one of Ireland’s most powerful and influential political and legal figures: John A Costello, former taoiseach and leader of the opposition party. Costello had been engaged by The Leader. Counsel for the printers, Argus, asked Kavanagh 71 questions.

The case was assigned to newly appointed High Court Judge Thomas Teevan (1903- 76), sitting with a jury. Teevan had just served as attorney general (1953-54) and had practised as a solicitor before qualifying as a barrister. It would be the first case decided by him.

Contempt

Kavanagh claimed that the profile article as a whole was a libel, together with a number of innuendos contained in the article’s wording, and that it “held him up to odium, hatred, ridicule and contempt, and that he had been gravely damaged in his reputation and in his profession”.

The publishers (Leader Limited) and its printers (Argus Limited) defended the action on the grounds of ‘fair comment’ in both its straightforward form and ‘rolled-up’ plea (that is, where a statement was of fact, it was true, and where the statement was a comment, it was a fair comment). No defence of justification was pleaded, so only evidence of general reputation was admissible in mitigation of damages. The defendants themselves did not go into evidence.

Costello set about undermining Kavanagh’s credibility in order to show that the article was factually true, the comments ‘fair’, and to mitigate any award of damages.

In reply to cross-examination as to the nature of his relationship with Brendan Behan, Kavanagh denied that they were friends – upon which, a copy of his book Tarry Flynn was exhibited, with attention drawn to his inside cover inscription: “For Brendan, poet and painter, on the day he decorated my flat, Sunday 12th, 1950.”

Costello cross-examined Kavanagh on his views on Dublin and London, the derogatory criticism of Irish institutions in Kavanagh’s Weekly, the speed with which he had instituted the libel proceedings, and about his own numerous satires, and so on.

It is a testament to Costello’s memory that he could remember the answers to the 1,267 questions.

Twelve angry men

The jury had to answer eight questions. Question 1: whether the article, as a whole, in its ordinary meaning, was defamatory of Patrick Kavanagh. Questions 2 to 6 related to various specified innuendos. Question 7 related to the defence of fair comment, and question 8 to the assessment of damages.

Judge Teevan directed the jury to apply the test of whether the article was defamatory in the eyes of ordinary people or the general body of the community.

Teevan J said that innuendos only arise when words do not primarily mean a particular thing, such as irony or innocent words taken in an offensive way. The judge told them that, if they answered question 1 in the affirmative, they could skip questions 2 to 6, leaving only questions 7 and 8 to be addressed.

The jury found that the article as a whole and in its ordinary meaning was not defamatory.

However, Kavanagh’s appeal to the Supreme Court – funded in part by TS Eliot and Jack B Yeats – was successful, with the judgment delivered on 4 March 1955.

The majority of the Supreme Court considered the finding that the article was not defamatory to be unreasonable and perverse. McInerney v the Clareman Co Ltd (1903 2 LR 375) and Broome v Agar (138 LT P98) were cited as authorities that “the question of libel or no libel being a matter of opinion, and opinions may reasonably vary within wide limits, an appellate court is more slow to take such a course [set aside the verdict of a jury] in a libel action than in other types of action”.

The Supreme Court held that Judge Teevan’s direction to the jury on innuendos was confusing and misleading, leading to an unsatisfactory trial. Innuendos are a technical area of libel law divided into:

•   Innuendos within the special knowledge of the reader, and/or

•   Innuendos within the acumen of the reader in discovering the full import of the words used.  

The court held that, in particular, Teevan’s direction that, where they found no evidence to justify a finding that the words bore any innuendos (as contained in questions 2 to 6), they must answer ‘no’ to questions 2 to 6, while (seemingly contradictorily) telling them that some of the innuendos might be implicit in question 1 and, as such, be included in the ordinary language.

The majority of the court held that the jury should have been left free to draw inferences (given that the writer of the profile did not use the language of direct statement) in arriving at their answer to question 1, but that Judge Teevan, by directing them to answer ‘no’ to questions 2 to 6, must have left the jury feeling precluded from considering whether the inferences claimed by Kavanagh would, in fact, be drawn by reasonable men.

One of the Supreme Court judges, Kingsmill Moore, stated that this confusion of the jury, coupled with their finding of no libel regarding an article that was, in his view, clearly libellous, created a probability of a miscarriage of justice too great to allow the verdict to stand.

The jury verdict was set aside, and a new High Court trial was directed to take place. However, due to insufficient finances to fund a second trial, an undisclosed out-of-court settlement was made to Kavanagh and his legal team, led by solicitor Rory O’Connor and Sir John Esmonde SC, signalling the end of two-and-a-half years of legal proceedings.

Caroline Fanning
Caroline Fanning is principal at Dublin law firm Fannings