From the Free Press (Wexford) 25 July 1908:

“FAMOUS COUNSEL ‘DISHED’ : MR JH CAMPBELL, KC AND THE COLONEL

In the course of the hearing of a sensational slander action in Cork on Wednesday, in which the Hon. Alexis Roche, Lord Fermoy’s brother, is seeking £5000 damages from Sir Timothy O’Brien, the well-known cricketer baronet, for slander, which, it is alleged, consisted of the following spoken at a meeting of the Duhallow Foxhounds on March 7^th last:

‘You are a swindler, a thief and a liar, and you have been living by swindling for the past twenty years.’

The laugh was badly turned against Mr JH Campbell, KC, ex-Attorney-General, who appeared for the defendant, and who is one of the most relentless cross-examiners at the Irish Bar.  This was when counsel was baiting Colonel Williamson, who, in the course of his evidence, said – ‘I went up and got hold of Sir Timothy’s horse by the bridle and gave him a chuck in the mouth and chucked him back.’

‘The horse or Sir Timothy?’ required Mr Campbell, amidst laughter.

‘The horse,’ replied witness. ‘Sir Timothy had no bridle on that day.’ (loud laughter)”

Things only got worse for poor James Campbell KC the following day, when the trial before Chief Baron Palles collapsed in the most sensational manner due to the conduct of his client, Sir Timothy O’Brien.  From the Irish Times, 24 July 1908, this account of what happened:

“The sitting of the Court was fixed for 11 o’clock, but at that hour the Lord Chief Baron had not taken his seat on the bench.  In a few minutes it was intimated to the leading counsel on both sides that his lordship wanted to see them in his room… Ultimately all the members of the Bar and solicitors engaged in the case were called in, and remained in consultation for a considerable time…

During all this lengthened period of waiting the Lord Mayor of Cork was the solitary permanent occupant of the judicial bench, but the prolonged delay in the commencement of the case proved too much for his patience, and he eventually left the court.  His departure enabled some of the more irresponsible section of the audience to relieve their pent-up feelings by indulging in a mild outbreak of applause, but this little ebullition quickly subsided.  

Counsel for the plaintiff took their seats about mid-day, and seemed ready to go on, but the opposing side had not yet to put in an appearance.  Shortly afterwrds the Lord Chief Baron resumed his seat in court, and with the appearance of the counsel for the defence public curiosity as to the subject of the delay was strained to its utmost. 

There was a general anticipation that the case had been amicably settled, and it was, therefore, with feelings of the most profound astonishment that the spectators listened to the statements which followed:

The Solicitor-General [Redmond Barry KC, for Mr Roche] rose and said – My lord, in this action, having regard to a communication which your lordship has made to counsel on both sides of this case… I will ask your Lordship to examine one of the jurors, Mr Francis Morrogh…

Mr Francis Morrogh, the juror mentioned by the Solicitor General, then went into the witness box, and on being sworn said he knew the defendant, Sir Timothy O’Brien.

Were you last night approached with reference to the verdict you should give in this case? I was.

By whom? A friend of mine.

I must ask you his name – The witness then said that it was William Harmon.

What was the suggestion made to you by him? What did he say?

Witness – He telephoned me; he is at present unwell… I was asked about this case, how it was going on.  I cannot give the exact words that were used, but the substance of them was ‘Our friend, Tim, would prefer a farthing in damages rather than a disagreement.’  Then I laughed, as of course the case was not over yet, and I then went away.  Then I went to dinner, and during dinner it suddenly struck me that this conversation might have been overheard by somebody on the telephone.

 This was a rather serious thing, so I telephoned to him (Harmon).  I said to him ‘This is a very serious thing; nobody knows who may have heard it.  Did Sir Timothy O’Brien ask you to ask me?’ Then he said, ‘Well, for heaven’s sake don’t take it that I am trying to influence you, because I declare it would not have the smallest effect, but I just thought I would tell you, he being a friend of yours.’ I said, ‘I know very well you don’t want to influence me?’ and he said again, ‘I am not trying to, nor do I intend to influence you but he being a friend of yours, I thought I would tell you what took place.’

The Solicitor-General – What did he say about Sir Timothy O’Brien? I asked him – I said ‘Did Sir Timothy O’Brien ask you to tell me this?

What did he say to that? He said yes.

What did you say to Mr Harmon then? I told Mr Harmon it was such a serious thing that I would not do it, that it would look very funny, after having been told this, that it was not the same as if it had come to me personally, because then it would be a matter between three people, but when the telephone was used nobody knew who would hear it, and that in circumstances I would consider it my duty to report the occurrence.

The Lord Chief Baron – I think it right to say that when this matter was in course of development, I thought it my duty to direct my Registrar to write a letter to this gentleman, whose name is Mr Harm0n, and I believe he is in court.

Mr Campbell – In view of the evidence of Mr Morrogh, I do not propose to offer any objection to the discharge of the jury…

The Lord Chief Baron – Well, gentlemen, I am sorry that so much of your time has been occupied with this abortive trial; but it is quite right that you should be discharged, and I now discharge you.

The Solicitor-General – I respectfully ask your lordship for liberty to serve a conditional order on Sir Timothy O’Brien to attach him for contempt of Court in attempting to pervert the course of justice by interfering with the jury.

The Lord Chief Baron – You must give legal evidence of that.  I must have the evidence not only of Mr Morrogh, but also of Mr Harmon.

Mr WRC Harman was examined by the Solicitor General as follows:

Did you last night send a telephone message to Mr Morrogh concerning this case.  I did.

What was it you said to him?  I think I first asked him how the case was.  I was in bed at the time.  Then I said I had had a communication from Sir Timothy, and that he said he would sooner have the case end in a farthing in damages against him than a disagreement.

Was it true that you had the communication from Sir Timothy? It was.

When did you receive it? About 8 o’clock yesterday morning.

Was it by letter? No, by telephone.

What did he say to you on the telephone? Well, the telephone was very bad and I complained two or three times of it…  He said he would sooner have a farthing in damages than a disagreement. And he mentioned Morrogh’s name? He said ‘FM.’ 

What did he say about FM? He asked me had I seen him, and I said no, that I was in bed ill, and could not see him.

What did he say then?  He gave me to understand – I cannot give me you the exact words, that he wished me to communicate with him… I told you I complained that the telephone was very bad, and that I could not understand what he was saying.

And the substance of what Sir Timothy O’Brien said was that hewas anxious that he should know is that he would prefer a farthing in damages rather than have an abortive trial? That is what I thought.

Did he, directly or indirectly, suggest to you to use any influence or put any pressure on Mr Morrogh? No, none whatsoever, except to tell him.

You don’t suggest that he asked you expressly to communicate with Mr Morrogh?

I am afraid he did.

The Lod Chief Baron – It is impossible to exaggerate the importance of this matter, because it is absolutely essential in the interests of justice that, pending a trial, no communication or suggestion should be made to any jury as to the verdict that should be given.  It becomes even more reprehensible for one of the parties in the case to be a party to it…  I don’t think it would be satisfactory that the case should be determined solely by a single judge, and therefore, while I think I am bound.. to make a conditional order for attachment, I will make the order that cause be shown before the Court of King’s Bench on the second day of next term.”

The attachment application was heard before the Court of King’s Bench in November 1908.  Having noted that the one farthing damages verdict suggested would be a verdict for contemptuous damages for Roche, thereby freeing Sir Timothy from any obligation to pay his adversary’s costs, and that this was plainly intended to prejudice the trial and a grave contempt of court, the Court fined Sir Timothy £300 and the costs of the proceedings to date.

One might have thought that, after all this, the new trial of the slander action which took place before Mr Justice Kenny in Dublin in June 1909 would be something of an anti-climax.  It was not.

The first witness to be called for the plaintiff was the Hon. Alexis Roche himself, who gave evidence that he was the son of the late Lord Fermoy and brother of the present Lord Fermoy.  When a young man of 25 years of age, he had been engaged in ranching in America, although he had come home every year for hunting season.  In 1883-4 he had returned to Ireland permanently.  He had not spoken to Sir Timothy since 1891 when the latter had alleged that Roche had got him to buy at Cahirmee Fair a grey mare called Clare, later described by Sir Timothy as ‘a screw.’  As far as Roche was concerned, on the day of sale the horse was sound.  A horse might be perfectly sound at Cahirmee Fair and yet lame the next morning.

In a cross-examination described by the Bolton Evening News as conducted ‘with severity’, James Campbell KC put to Roche that he had made many fraudulent sales of horses to persons including Lord Listowel. Roche said that that, although Lord Listowel had refused the horse sent to him following a vet’s examination, he himself had sold it for more money after another vet’s examination and had never had any complaint. 

Unfortunately for Mr Campbell, the next witness up for the plaintiff was Lord Listowel himself, who gave evidence that the horse provided to him by Roche was perfectly sound, only a slight whistler, and that, since the transaction, Roche had often stayed with him at his place, Convamore.

Mr McKenny, veterinary surgeon, further confirmed that he had examined Clare, the grey mare, prior to her sale to Sir Timothy in 1891, when she had been sound; he had examined all of her, even her tail, which was very important.  Mr McKenny’s attempts to explain exactly why Clare’s tail was so important were frustrated by the new trial judge, Mr Justice Kenny, flatly announcing that he wanted no dissertations on horse’s tails.  Whether or not this further evidence, if allowed, would have made a difference to the outcome of the case, must forever remain a mystery.

Also a witness for the plaintiff was Mr Nigel Baring, whom Mr Campbell had also alleged had been a victim of Roche.  Mr Baring, who had recently married Roche’s niece, stated that he had bought a horse called Barabbas from Roche on his own judgment. He admitted subsequently having had a quarrel with Roche, but it was about the digging out of a fox, not Barabbas, and that if he had ever talked about shooting Barabbas, it was a joke, in the sense of ‘I would shoot the devil.’  He had not in fact shot Barabbas, but had given him as a present to someone else who had sold him on very well. 

Opening for the defendant, Mr Campbell, once more into the breach, told the jury that there were two types of person who were very difficult to cross-examine.  One was the witness who had told nothing but the truth, the other was the witness who had told nothing but lies.  The difference between them was that one would not afterwards be challenged or contradicted by others, and the other, who took refuge in a torrent of lies, was only weaving a net closer round himself, because the more people would be brought up to contradict him. 

Continuing, Mr Campbell said that he would produce an overwhelming mass of evidence to show that Roche had lied in the witness box. Mr Baring had said that the only quarrel he had had with Roche was over the digging out of a fox; according to Mr Campbell, his own job, as counsel for Sir Timothy, was ‘to dig out that fox,’ and this he would do.

Despite his best efforts, Mr Campbell did not dig out the fox. His first witness was Robert Barrer, Roche’s former groom, who said that there was no doubt that the grey horse, Clare, who was sold in 1891 to Sir Timothy, was a whistler, and that Mr Roche knew it.  Clare had tender feet.  The horse Barabbas, sold to Mr Baring, was also a whistler, and Mr Roche knew that too. 

Asked by the judge if he regarded Mr Baring, who had given £200 for Barabbas, as an utter fool, Mr Barrer said that he did not know about that, but he supposed that he regarded him in the same way that Mr Roche regarded most people he had dealings with, namely, as knowing nothing about horses.

Mr Barrer’s evidence, however, was somewhat weakened by the fact that, since he returned from America four months ago, he had been staying at Lohort Castle with Sir Timothy O’Brien, with use of two hunters and Sir Timothy’s motor car. 

The key defence witness was, of course, Sir Timothy himself. Despite a promising start, the following cross-examination by the Solicitor-General ensured that Mr Campbell’s fox remained safely in his lair:

“Do you say Mr Roche is a habitual criminal? I have given the particulars, and I say that he committed eight criminal acts to my certain knowledge.

You are a great censor of other men? No.

You take it upon yourself to sit in judgment upon other men and you think you are qualified to do it by your own record – having regard to your own record you are entitled to denounce men in the open field as ‘liars’ and ‘thieves’?  I did it on that occasion.

The Solicitor-General: I put it to you, Sir Timothy, that you are nothing except a bully? You put it wrong.

Did you without cause at the Limerick Club strike a man down who was drunk? No.

Did you call him a cur? I think I did.

Did you threaten to roll him in the mud? I don’t think I did.  I am not sure.

Did you so insult him that he threatened there and then to shoot you? No.

Did you knock him down?  No; I pushed him over.

Were you not present at his inquest the following day?  Yes.

It transpired that the man in question, Limerick magistrate Peter Griffin, had killed himself as a result of his public humiliation by Sir Timothy, who, under further cross-examination, admitted that he had pushed his own chauffeur out of the house, and might have called Lord Ennismore a ‘fat-head’, but emphatically denied that any cricket team had ever ceased or refused to play because he was playing.  He also denied having written to the Bishop of Cloyne to denounce one of his priests as a drunkard.

Despite the defence team’s best efforts to clear up the damage, to the extent of calling the Bishop of Cloyne himself as a witness, the harm was done – at least as far as the judge was concerned. 

In his summing up, Mr Justice Kenny said that Sir Timothy O’Brien came to court as a champion of morality – equine morality – in County Cork.  Not only had he made distinct charges, but he refused to withdraw and apologise for them. His Lordship thought the jury would agree that the way he acted betrayed a vindictive spirit.  The only one of the charges with which Sir Timothy O’Brien had any connection was in reference to an incident in 1891.  Sir Timothy never made any direct communication to Mr Roche about that but evidently went about the country stating that he had been tricked.  Unless the jury found that every word Sir Timothy O’Brien had spoken was true, that the plaintiff was a liar, a thief and a swindler, and had lived by swindling, they must find for the plaintiff.

It probably did not help that Mr Justice Kenny had been a member of the court which had earlier fined Sir Timothy for trying to influence Mr Morrogh.

It had been a very long case, and the jury was probably fed up of the whole business.  They found in favour of Roche but awarded him the modest sum of £5 in damages – still enough, however, to enable him to recover from Sir Timothy his costs, which would have been considerable.

What remained unexplored in the second trial, although mentioned briefly in the first hearing before Chief Baron Palles, was the immediate cause of Sir Timothy’s outburst at Duhallow – an alleged offensive remark made by Mr Roche about an undisclosed lady.   Was Cork gallantry the cause of all this litigation?  As the French say – cherchez la femme!

One interesting feature of the case is that Mr Roche was the great-great-uncle of Diana, Princess of Wales, whose offspring may have inherited the family fondness for – and hopefully luck in – litigation?