Two recent cases have shed further light on the pros and cons of a Defendant availing of the “offer to make amends” procedure under the Defamation Act, 2009.   

Padraig Higgins v Irish Aviation Authority

Section 22 of the Defamation Act, 2009 allows a Defendant to Court proceedings to make an offer to make amends in order to save legal costs and avoid protracted court battles. This offer to make amends envisages a Defendant offering a suitable correction to the defamatory statement concerned and an apology along with the payment of compensation or damages to the Plaintiff(s). Section 23 of the Defamation Act states that in the absence of agreement on the damages or costs this will be decided by “the Court”. The legislation does not specifically address whether Section 23(c) provides for a Judge to decide on the necessary award or whether it should go before a Judge and Jury.

This question was raised in a recent High Court case where there was a dispute between the parties to a defamation action as to the level of damages to be paid. The Plaintiff, Padraig Higgins, sought the case to be brought before a Judge and Jury which was opposed by the Irish Aviation Authority. The High Court found in favour of the Plaintiff which was appealed by the Defendant.  

Mr Justice Hogan, on behalf of the Court of Appeal, stated that the Oireachtas should have taken the opportunity to “put the matter beyond doubt” by the use of clear and express language in the 2009 Act. Mr. Justice Hogan stated that the failure to use sufficiently clear language compelled him to acknowledge another key principle of statute interpretation – the presumption against unclear changes in law. He held that, as the role of a Jury in the award of damages in defamation cases “is embedded in the fabric of common law” and that right has been expressly preserved in the Courts of Justice Act 1924 and the Supreme Court of Judicature (Ireland) Act 1977,  a Jury should determine the damages under Section 23.  

Daniel Ward v The Donegal Times Limited and Liam HylandSean Quinn v The Donegal Times Limited and Liam Hyland

On 8 November 2016, the High Court gave a decision on two connected cases in which this firm acted for the Defendants. The Plaintiffs had sued for defamation arising out of two articles in the Donegal Times newspaper. The Defendants had made offers to make amends and ultimately the Plaintiff had refused the apologies and damages offered as part of the process.

The benefit for a Defendant in making an offer to make amends is that when it comes to awarding damages to a Plaintiff, in a situation where the damages cannot be agreed between the parties, it empowers the Judge (in this case the parties had agreed that the damages could be determined by a judge alone) to apply a discount to the damages he/she believes should ordinarily be awarded. Discounts of up to 50% have been applied in the UK where there is a similar process.

Judge McDermott, having regard to a previous High Court decision in Christie v TV3 (see our Media Bulletin – December 2015), discounted the damages that he held were due to the Plaintiffs by 20% and not the 33.33% allowed in the Christie case. The Court reduced the discount on account of what it considered to be the lateness and insufficiency of the apology offered by the Defendants. In addition, the Court took a dim view of two articles published by the Defendants after the offers to make amends had been made and which “rehashed” the earlier defamatory articles on foot of which the Plaintiffs had sued. As regards the subsequent articles, while the Court rejected the Plaintiff’s argument that these two articles could be a basis for seeking aggravated damages, given the manner in which the cases had been pleaded, it felt that it was more appropriate that the articles be taken into account in terms of the discount to be afforded to the Defendants.

As an aside, while the newspaper in question had a limited circulation of approximately 5,000 copies, the Court noted that “in a small rural area a  newspaper can have a very large effect on local views and the regard neighbours will have for each other”. While the breadth of publication i.e. circulation in this instance, is relevant to the amount of damages to be awarded it seems that the Court equated the saturation effect of a local newspaper such as the Donegal Times in a small area with the impact that a national newspaper might have over a much broader area.  

Comment

The Court of Appeal decision effectively renders the “offer to make amends” procedure unusable for Defendants in defamation cases given the uncertainty as to what certain juries may award in damages. Any discussion surrounding the decision on the discount that was applied in the more recent High Court decision is therefore largely moot. These decisions will offer little solace to Defendants in defamation claims, in particular the media, who will welcome the current review of the Defamation Act, 2009 and will hope that the inadequacies in that legislation will result in the publication of amending legislation in the near future.