Higgins v Irish Aviation Authority was the first case to assess damages where defamation was admitted and an apology was given under the "offer to make amends" procedure.
In November 2019, a High Court jury awarded €387,000 to the Plaintiff, arising from defamatory emails which were sent in 2013. The jury assessed general damages in the sum of €300,000 and aggravated damages in the sum of €130,000. A 10% discount was then applied in light of the offer to make amends under section 22 of the Defamation Act 2009. A final apology was approved at the outset of the damages hearing. An unqualified offer to make amends had previously been made in May 2015, which was accepted by the Plaintiff, but the parties were unable to agree the quantum of damages. Pursuant to section 23(1) of the 2009 Act, damages therefore fell to be determined by the Court.
The Defendant argued that section 23 did not permit a jury trial. In a judgment in May 2016, the High Court found that the Plaintiff was entitled to have damages assessed by a jury, with instruction from a judge. This decision was upheld by the Court of Appeal. The Defendant then appealed to the Supreme Court, which also affirmed the decision. Ms Justice Dunne held that "the Court" meant a jury. She stated, "the assessment of damages in a High Court defamation action is and always has been quintessentially a matter for a jury".
The decision of the Supreme Court confirmed that a Plaintiff is entitled to have damages assessed by a jury, even where there is an offer to make amends. The recent damages hearing in the High Court illustrated that jury awards can be hugely disproportionate, although a discount will still be applied where there has been an offer to make amends. Discounts vary widely, but generally, an early offer to make amends and apology will attract a higher discount.
The Supreme Court when giving its judgment in 2018 commented that reform would be desirable in this area to bring greater clarity to how the offer to make amends procedure was intended to work in practice. However it made it clear that only the Oireachtas can remove the right to a jury trial in High Court defamation actions. The Department of Justice is currently reviewing the 2009 Act, with legislative proposals due in summer 2020. It remains to be seen whether these proposals include the removal of the right to a jury trial, but currently the risk of disproportionately high awards by juries remains.