The Supreme Court has recently laid down welcome guidance on the appropriate range of damages for different levels of defamation; on the central role of the jury in assessing damages and liability; and on how appeal courts should respond to disproportionate jury awards.

Despite express provision in the Defamation Act 2009 that juries could receive guidance on damages, in practice juries hearing defamation actions have tended to receive limited guidance that is either very general (“Be fair to both sides”), relies on comparisons with extreme cases, or avoids making reference to other awards altogether. Little wonder then that jury awards sometimes miss the mark.

In Higgins v IAA,1 the Supreme Court has laid down welcome guidance on the appropriate range of damages for different levels of defamation; on the central role of the jury in assessing damages and liability; and on how appeal courts should respond to disproportionate jury awards. While the recently published Report of the Review of the Defamation Act 2009 has expressly recommended the abolition of juries in defamation actions, the clarity of this new guidance might cause some reflection on whether the defamation jury deserves a last minute reprieve.

Background

This long-standing defamation dispute arose out of emails sent by a representative of the Irish Aviation Authority (“IAA”), a statutory regulator, to the corresponding UK regulator, concerning a commercial pilot with an unblemished professional record. The emails emerged following a data subject access request to the UK regulator, having not been produced by the IAA. The IAA initially denied defamation, doubled down by making new allegations about the plaintiff, and after 6 years of litigation made an ‘offer to make amends’ pursuant to sections 22 and 23 of the Defamation Act 2009. The parties’ inability to agree on compensation in respect of that offer went all the way to the Supreme Court, which confirmed that it is up to a jury to assess damages under a section 23 offer, not a judge sitting alone.

At the subsequent assessment hearing, the jury heard detailed evidence regarding the emails and the IAA’s conduct in response to the defamation claim, of which it apparently took a dim view, and it assessed damages at €300,000, plus €130,000 in aggravated damages and applied a 10% discount on the basis of the offer to make amends. On appeal, the Court of Appeal substantially reduced the award as disproportionate, awarding €70,000 general damages and €15,000 aggravated damages, but applying the same level of discount. Mr Higgins appealed, representing himself at the Supreme Court hearing.

There were some points of disagreement between the five presiding Supreme Court judges, including two judges who would not have disturbed the original jury award.

Notwithstanding those points of difference, the leading judgment of MacMenamin J provides a reasoned exploration of the basis for jury awards in defamation, and some wry observations on the limited guidance given to the jury at the assessment hearing and the factors that influenced the damages award. The court was critical of the fact that the only cases cited to the jury by way of guidance were extreme cases which bore little resemblance to the facts of the case that the jury had to consider.

Limited circulation was also discussed. This will usually serve to reduce damages. In Higgins, however, the limited extent of the circulation was offset by the fact that the sender was a statutory authority and the recipients a limited but influential audience. The emails “emanated from an IAA official, who would have to be taken to have known of the potential consequences were the claims sustained, and where the IAA was itself a regulator, or supervising authority.”

There was also no ‘freedom of expression’ factor, the court found, as the emails were admittedly defamatory and wrongful and therefore not subject to constitutional protection, and so provided no counter balance to the constitutional protection of the plaintiff’s good name on the facts of the case. The fact that the plaintiff did not in fact suffer any damage to his career was not the point; he gave evidence that he did suffer significant anxiety and stress over the potential for his career to be impacted.

Assessing damages

MacMenamin J assessed general damages at €175,000, plus €50,000 aggravated damages for the IAA’s conduct, and applied a 10% discount on the basis that the offer was made very late in the proceedings. In so doing, the court outlined five rough brackets of awards to serve as a rule of thumb for the assessment of general damages for defamation. The descriptors used below are based on the court’s general comments about these ranges but should not be treated as prescriptive or limiting.

Gravity of defamation Range of compensation

very moderate defamation

0 to €50,000

“a medium range of cases”

€50,000 to €125,000

Level 3

“seriously defamatory material” with mitigating factors, such as limited publication

€125,000 to €199,000

very serious defamation

€200,000 to €300,000

Exceptional cases

“very real damage to an individual’s reputation, where clearly the balance tilted decisively in favour of vindication of good name.”

Cases in which awards higher than €300,000 are appropriate will be truly exceptional (de Rossa;2 Leech3)

Offer to make amends – the discount

There is welcome guidance regarding the discount that a court should apply in respect of an offer to make amends, from which it is clear that this again is fact dependent. A range from 0% to 50% reduction is available, depending on the speed of the offer, the terms of the offer and the spirit in which it is made. The 10% discount applied in Higgins is at the lower end of that scale, reflecting the fact that the offer was made late in the day and ran counter to the IAA’s conduct in the proceedings up to that point. The fact that the IAA pursued the question of whether the damages should be assessed by a judge or jury was not a relevant factor to be taken into account in this regard – the IAA was fully entitled to bring that application and pursue the point on appeal.

Three key takeaways

First, Higgins illustrates an important point about Irish defamation law that bears repeating – that defamation risk is not just for the media, a point that could get lost in the usual debate about defamation reform. Many defamation actions concern communications, and miscommunications, by organisations other than the media – press releases, emails, letters, website posts, comments at meetings, text messages – and as the Supreme Court pointed out, such defendants will struggle to defend cases on grounds of freedom of expression. Ensuring that personnel are trained how to avoid risk is essential. The good news is that there are machine-based tools available to organisations at reasonable cost that spot potential risk and help to reduce exposure at the point of content generation, the need for which is all the more evident in light of the damages award in Higgins.

Secondly, if you do want to rely on an offer to make amends, do it quickly, engage constructively and remember that maintaining a robust defence to the complaint at the same time will place you at the lower end of the discount scale if the terms aren’t agreed. When it comes to placing you on that scale, a jury that comes to consider the damages will now have clear guidance for the task.

Thirdly, the Supreme Court has now provided the clarity on damages that was previously lacking and which underpinned the recommendation in the Report of the Review of the Defamation Act 2009 to abolish jury hearings in defamation actions. The Report provides very little analysis for this recommendation. It remains to be seen whether the judgments in Higgins will lead to some reflection on this recommendation and whether it will ultimately be reproduced in a Defamation Bill. As things stand, following Higgins, we can expect to see much greater consistency in jury awards and the guidance given by the Supreme Court is likely to encourage earlier settlement of defamation claims. However, the offer to make amends procedure in its current format is likely to remain largely unused, pending legislative change.