Last week, the High Court upheld an appeal from the Circuit Court by a student and now graduate of NUI Maynooth, whose claim alleged he was defamed and “racially profiled” whilst using the Luas tram in Dublin city centre. The plaintiff was awarded nominal damages for defamation and his costs. As the courts display greater scepticism towards defamation claims against businesses, will the volume of such claims, which have traditionally presented considerable risk for retailers and other corporates, decrease?
In Diop v Transdev Dublin Light Rail and STT Risk Management,1 the plaintiff claimed that while travelling on the Luas tram in 2016, he and his brother were defamed by the tram security guards, provided by STT. The plaintiff alleged they had been “racially profiled” and that they were unfairly selected from the crowd by the security guards and asked for tickets. The plaintiff and his brother had valid tickets. Despite this, one of the guards had said, “I don’t like your attitude, just step off please”, and gestured at Mr Diop to leave. This statement was countermanded by another guard, who said the brothers could remain on board. The guards gave evidence that there had been a problem that day with youths hopping on and off the tram without tickets.
The plaintiff lost his Circuit Court defamation case and appealed to the High Court.
On 12 December 2019, Mr Justice Barr upheld the appeal, finding that the request to produce their tickets was not defamatory, but that Mr Diop had been defamed by the quoted comment. The Court awarded the plaintiff his costs in the Circuit and High Court and awarded damages of €500. The Court considered that nominal damages were sufficient to vindicate the plaintiff’s reputation and good name, as the defamation was almost immediately expunged by the subsequent comment, such that those present could not reasonably have formed any lasting adverse opinion of the plaintiff. The Court held it was not for it to adjudicate as to whether the guards’ actions amounted to racial profiling or discrimination as “this was purely a case about defamation”.
Recent trends in retail / consumer defamation cases
The Diop case aside, recent Circuit Court decisions illustrate a shift in the attitude of the courts and less tolerance for certain types of defamation claims by consumers against businesses.
- Fowler v Marks and Spencer (Ireland) Limited, No 2018/02998 - The plaintiff was asked by the shop assistant if she had paid for a €1 ‘Bag for Life’. The plaintiff took offence and asserted she had been singled out. The shop assistant said the bag appeared to be new and she had queried if she should scan it. Whether the plaintiff was asked to “prove” the bag was hers or not was disputed. Judge O’Connor dismissed the case, noting that the fact the plaintiff was upset did not give rise to a defamation action and that “asking someone had they paid for a bag was not defamation”. The plaintiff’s claim of false imprisonment was also dismissed as “completely over the top”. The Court made no order for costs in this instance but warned that it may do so in future.
- McCarthy and Walsh v Harbourmaster Bar and Restaurant Trading Limited & ors, No 2018/06901 - The plaintiff couple left their belongings in the Harbourmaster and went outside to the smoking area without having settled their bill. A waitress subsequently asked for payment in front of other customers. The plaintiffs took defamation proceedings, which Judge O’Connor dismissed stating “Quite frankly, asking someone to pay for a meal isn’t defamatory and by no stretch of the imagination is there any evidence that they were defamed.” The plaintiffs indicated they would not appeal the ruling and costs were not awarded against them.
- Sunner v Dealz Retailing Ireland Ltd & ors, No 2017/04762 - The plaintiff claimed she was defamed and falsely imprisoned when asked in a Dealz shop whether she had paid for a toy rattle she had given to her child. After the plaintiff and her child left the shop, the rattle was found on another shelf. Judge Linnane held the plaintiff was the author of her own misfortune and stated, “People should be a little bit slower about going to their solicitors when things of this nature are said to them in shops.” The case was dismissed and the plaintiff was ordered to pay costs.
Choice of appropriate Court venue
The choice of forum for a defamation action affects whether a case will be heard by a judge alone or jury, the level of legal costs and the potential award. A significant number of retail defamation claims are brought in the Circuit Court and at present such claims cannot issue in the District Court, which can handle claims up to €15,000. Extending the jurisdiction to hear defamation claims to the District Court might enable swifter access to justice and quicker resolution of disputes, while also reducing legal fees.
In Diop, the Court identified that the plaintiff had been badly treated but in so far as the law of defamation was concerned, it was a “momentary defamation” justifying nominal damages. Hence, immediate corrective action taken in respect of a less serious defamation can greatly reduce the level of exposure to damages, where an error has occurred.
More generally, recent judgments suggest a growing lack of tolerance for alleged defamation in respect of statements which caused upset but were not defamatory. Ireland is however many steps away from introducing any sort of “serious harm” threshold for defamation as exists in the United Kingdom - and indeed there may be constitutional impediments to doing so. The cost to businesses of dealing with defamation actions can be significant, an issue that cannot be addressed solely through the Courts. It remains to be seen if the government’s reform proposals 2020 will take on board suggestions to amend the District Court jurisdiction or provide clear alternative dispute resolution mechanisms for defamation disputes.