Solicitor David Christie, who was successful in High Court defamation proceedings against TV3, after he was wrongly identified in a news broadcast in November 2013 as fraudulent solicitor Thomas Byrne, has had his award of €140,000 cut to €36,000 by the Court of Appeal[1].

When this case came before the High Court, O’Malley J sitting alone without a jury, assessed the starting point of damages to be in the region of €200,000 and allowed a discount of one third in light of the offer of amends and apology made by TV3 Television Networks Limited (“TV3”). TV3 appealed her decision and asked the Court of Appeal to consider how damages in cases of unintentional defamation of this kind should be assessed and furthermore, what the appropriate discount should be where an offer of amends has been made.

Offer of amends procedure and discount on damages

The High Court defamation action was the first case where the appropriate discount on damages, where an offer of amends under the Defamation Act[2] has been made, was considered by the Irish Courts. The offer of amends procedure replaces the defence of unintentional defamation and is intended to encourage parties to avoid a fully contested defamation action in clear cases of defamation by appropriately reducing the award of damages in acknowledgement of the defendant’s willingness to accept its wrongdoing. It involves the offending party offering to make and publish a suitable apology and correction and to pay an agreed amount of damages and costs. If the offer of amends is accepted but the parties do not agree as to settlement terms, particularly as regards damages, the plaintiff can ask the High Court to determine damages.

Court of Appeal: “award of damages must be measured and proportionate”

On appeal, Hogan J. considered that an award of damages for defamation must be measured and proportionate acknowledging the duty of the court to balance two competing constitutional rights, namely the protection of the right to a good name against the right of free speech and expression. He said excessive awards plainly impact on the right of free speech and the special role ascribed by the Constitution to the organs of public opinion in their “rightful liberty of expression” and the “education of public opinion”. Hogan J felt this was true of the present case where commentary on an important criminal trial is part of the education of public opinion which is constitutionally designated as a core function of the media generally.

While noting that the defamation was serious and the potential for confusion, distress and embarrassment to Mr Christie was considerable, he held the damages awarded were too high taking a number of mitigating factors into consideration, namely, that it was a one-off nine second broadcast, the plaintiff was not named, the range of viewers who might think the news item referred to Mr Christie was limited, there was no animus towards the plaintiff, it was a clear case of mistaken identity and those closest to Mr Christie would surely know it was an obvious error. In the circumstances, he held a starting point of €60,000 as opposed to €200,000 was appropriate and proportionate.

Level of discount on damages increased

While O’Malley J in the High Court measured the discount at 33%, Hogan J went further and considered that TV3 should receive a discount of 40% in recognition of the swiftness of the apology and the general prominence given to it on the main news bulletin a few days after first publication. He opined that it is only appropriate where parties engage in a process of conciliation such as this that the level of damages is reduced appropriately in acknowledgement of the defendant’s willingness to accept its wrongdoing, as has been the case in the UK. Importantly, he noted the level of discount in offer of amends cases where the apology is grudging or not given appropriate prominence will be a lot less than where the apology is fulsome, generous and given the prominence it deserves.

Interestingly, a number of other factors were highlighted by the court as reducing the level of discount that might otherwise have been obtained. Firstly, the apology published did not state that Mr Christie had been defamed and apologised for “any distress and embarrassment that may have been caused”. Hogan J felt this took from the completeness of the apology and the use of the indefinite article “any” as opposed to “the” suggested a level of mental reservation about the nature of the defamation. Furthermore, the original compensation offered by TV3 in the amount of €1,000 trivialised the nature of the defamation and failed to recognise its seriousness.

Comment

While the Court of Appeal’s decision is to be welcomed by defendants in the context of the manner in which damages in cases of unintentional defamation are assessed and the increase of the discount to be applied when taking mitigating factors into account, the attractiveness of the offer of amends procedure to defendants remains to be seen. This is particularly so following the recent decision in Higgins v Irish Aviation Authority[3] where Hogan J in the Court of Appeal agreed with the High Court in interpreting section 23 of the Defamation Act 2009, that a plaintiff can elect to have an assessment of damages pursuant to the acceptance of an offer of amends heard by a jury as opposed to a judge sitting alone.

That defendants can potentially find themselves facing a jury even after an offer of amends has been accepted is, given the traditionally high level of jury awards in defamation cases in this jurisdiction, somewhat of a deterrent to invoking the offer of amends procedure at all. It will however be interesting to see what, if any, direction the Courts give to juries in offer of amends cases on the levels of compensation and the discount to be applied.