A common over-riding concern of defendants to defamation proceedings is the amount of costs they will be liable for should they lose the proceedings and an award of costs is made against them. Too often defamation proceedings go to trial or are settled at a very late stage, when alternative means of resolving the litigation are available and have the potential of resolving matters early and for far less costs.
One such useful alternative is an “offer to make amends” pursuant to Sections 22 and 23 of the Defamation Act 2009 (the "Act"). This procedure potentially allows a quick route to settlement where a defendant has defamed an individual or entity. It gives the defendant the opportunity to try to exercise a quick exit strategy without being penalised by lengthy litigation and its associated costs.
To avail of these provisions, a defendant must offer to do the following three things:
- Make a suitable correction of the statement concerned and offer a sufficient apology to the person to whom the statement refers or is alleged to refer;
- Publish that correction and apology in such manner as is reasonable and practicable in the circumstances; and
- Pay the person a sum in compensation or damages (if any), and pay legal costs as are agreed by the parties.
Any offer must be (a) in writing; (b) described as an offer to make amends; (c) described as being either in respect of the entire statement, or part, or a particular meaning.
In accordance with the Act, if a defendant chooses to rely on these sections, it must make the offer before any defence is delivered. If the offer to make amends is not accepted by the plaintiff, then this can be pleaded as a mitigating factor and defence in the proceedings (subject to the statement not having been knowingly false to the publisher at the time of the publication). If agreement cannot be reached, the defendant may, subject to the Court, publish a unilateral apology.
If the offer to make amends is accepted, but the parties cannot reach agreement on damages or costs, this will be determined by the relevant Court.
Ideally, at the commencement of any proceedings, a defendant would be advised to carry out a robust legal and cost benefit analysis to determine if these sections of the Act should be utilised. They appear to be of particular relevance to a defendant who accepts that it has defamed a plaintiff, but wishes to extract itself from proceedings as cheaply and quickly as possible.
To date, there has been no reported case law in Ireland dealing with these sections of the Act. However, UK case law would indicate that similar provisions under corresponding legislation are frequently availed of by defendants, in particular by newspaper publishers. In the UK it is clear that, if an early unqualified offer to make amends is made and accepted, and an agreed apology is published, the damages awarded (if not agreed) are often significantly reduced. In addition, if the plaintiff fails to agree what a Court may ultimately deem a reasonable offer of an apology and compensation, this may well have a bearing on the legal costs awarded if the case proceeds.
While some might argue that the current law on defamation is too liberal and pro plaintiff, the statutory mechanisms available under the Act, such as the offer to make amends procedure, can put considerable pressure on plaintiffs to engage in meaningful settlement negotiations, provided the mechanisms are invoked by defendant companies and individuals at an early stage. If used correctly these mechanisms can provide a more cost effective and sensible way of potentially dealing with many defamation cases.