In a recent Supreme Court decision, Ms Justice Dunne held that a plaintiff is entitled to have damages assessed by a jury in defamation proceedings where an offer of amends has been made by a defendant, and accepted by a plaintiff, but the parties cannot agree the amount of damages to be paid by the defendant.

The Defamation Act 2009

The Defamation Act 2009 (the Act) introduced a new “offer of amends” procedure with the aim of encouraging early and quick resolution of defamation disputes. Section 22 provides that a person who publishes a statement that is alleged to be defamatory may make an offer to make amends in writing. This entails an offer to make a suitable correction of the statement concerned, an apology to the affected party in a manner that is reasonable and practicable and an offer to pay compensation or damages and costs as may be agreed or as determined to be payable.

Section 23 of the Act sets out the procedure to be followed in defamation cases where an offer to make amends is accepted by the plaintiff but the parties cannot agree the quantum of damages. Section 23 provides that those matters should be determined by the High Court (or the Court in which any proceedings has already been brought) and the court shall for those purposes have all such powers as it would have if it were determining damages or costs in a defamation action. The use of the phrase ‘the court’ is not defined in the context of determination of damages in section 23 of the Act.

Background

The Supreme Court considered two Court of Appeal cases in defamation proceedings together in Higgins –v- Irish Aviation Authority and White –v- Sunday Newspapers Limited regarding an identical point of law, namely whether a plaintiff is entitled to have damages assessed by a jury when an offer of amends has been made pursuant to section 23 of the Act rather than a judge sitting alone.

The appellants argued that it was the intention of the Oireachtas in drafting Section 22 and Section 23 to ensure a prompt resolution of disputes and that this would be defeated if a jury was required to assess damages.

In dismissing both appeals the Supreme Court concluded:

the assessment of damages in a High Court defamation action is and always has been quintessentially a matter for a jury. Even in cases where liability is admitted, a jury determines damages”

and

the phrase ‘the court’ as used in s 23(1)(c) means a jury in the context of the assessment of damages”.

The Supreme Court also noted that it is not clear from the drafting of the Act how the procedure of an offer of amends is to work in practice. The Supreme Court noted that if this matter is the subject of further review in the future it would very desirable to set out a very clear mechanism for the procedure.

Effect of Decision

When parties to defamation proceedings are presented with an offer to make amends efforts should be made to try agree the amount of damages to be paid as in the absence of an agreement damages may have to be assessed by a jury thereby potentially incurring considerable costs, delay and use of Court resources.

Higgins –v- Irish Aviation Authority & White –v- Sunday Newspapers Limited [2018] IESC 29