knowledge | 4 June 2020 |

Whether Qualified Privilege Applies is a Question of Law to be Determined by the Trial Judge in Defamation Proceedings

The Court of Appeal has dismissed an appeal by Ryanair seeking a retrial of defamation proceedings which turned on the issues of qualified privilege and a failure to raise further requisitions at trial. 

Ryanair sued three pilots, founders of the Ryanair Pilot Group (“RPG”), a nascent pilots’ trade union, for defamation.1 The proceedings arose out of an update email RPG issued to an email mailing list for Ryanair pilots, which Ryanair claimed accused it of market manipulation and insider dealing.  The defendants did not seek to prove the truth of the allegation but relied upon the defence of qualified privilege, a defence which, if it is found to apply, can only be defeated by evidence of malice on the part of the publisher of the statement.

In December 2017 after a 27 day hearing before the High Court, the jury found that the pilot update email was defamatory and meant that the airline was guilty of market manipulation.  The jury also, however, found that Ryanair had not proved malice by the three defendants.  On that basis the judge ruled that the email was published on an occasion of qualified privilege and the claim for damages for defamation was defeated.

Ryanair appealed the jury verdict to the Court of Appeal, a ground of appeal being that the judge erred in his directions to the jury in relation to qualified privilege. The trial judge had indicated that a finding of qualified privilege was a matter for the judge and not the jury, once the jury was satisfied that there was no malice by the defendants. The trial judge ultimately decided that the email was published on an occasion of qualified privilege.

Decision of the appeal court

Dismissing Ryanair’s appeal and affirming the finding of the High Court, the Court of Appeal agreed with the trial judge in relation to the directions to the jury.  The trial judge’s ruling on the issue of qualified privilege was correct in law and the findings of fact made by him in reaching that conclusion could not be disturbed by the higher court.  

The Court of Appeal also found that Ryanair was precluded from raising a number of other grounds of appeal regarding directions to the jury as it had not raised requisitions in relation to these or sought a discharge of the jury at trial.


The question of whether a publication for the purposes of defamation law occurs on an occasion of qualified privilege is fact dependent and will turn on the oral or documentary evidence placed before the court.  Qualified privilege is a safety net, which only comes to be invoked where a statement is defamatory of the plaintiff and the publisher cannot prove the truth of the statement.  As a defence qualified privilege enables a publisher to escape liability for the publication of the wrongful statement, provided that they acted in good faith when publishing it.  If the plaintiff can prove that it was published pursuant to an agenda or some improper motive (“malice”) then the defence will not succeed.  The Court of Appeal has confirmed the key elements of the defence and that the role of the jury as the finders of fact was to determine whether or not there was malice, while the role of the trial judge was to rule on the legal consequences of the facts found.  The trial judge acted correctly in determining that the defence was made out in the absence of malice.

The Court of Appeal judgment also confirms the principle that points not requisitioned at trial cannot later form the basis of an appeal.

The Media Defence Group at McCann FitzGerald is available to answer any queries you may have in relation to this briefing. Alternatively, your usual contact at McCann FitzGerald would be pleased to provide further information.

Also contributed by Emily Cunningham.

  1. Ryanair DAC v Van Zwol [2020] IECA 105.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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