The Offer of Amends procedure is designed to provide parties in a defamation dispute with a fast track resolution process; encouraging earlier and more cost effective settlements.
In order to implement the procedure, the defendant must accept that the publication was defamatory and thereafter the parties engage in negotiations with a view to agreeing the terms of an apology as well as suitable financial compensation. If agreement cannot be reached between the parties regarding either the apology or the financial compensation, the Court then determines what is appropriate in the circumstances.
It had generally been anticipated that failure to agree on financial compensation would result in a judge alone making the final determination. However, the Courts have subsequently interpreted the relevant legislation as providing the plaintiff with the opportunity of electing to have the assessment of damages heard before a judge and jury.
This is considered particularly favourable for plaintiffs and reduces some of the attractiveness of implementing this procedure for defendants as it could still result in a jury determining damages.
However, this will now be counterbalanced by the significant reductions that are available to defendants that publish a prompt and fulsome apology and implement the Offer of Amends procedure.
In this case, Mr Christie, a solicitor, sued TV3 after he was wrongly and accidentally identified in a news bulletin as Thomas Byrne, a different solicitor that had been jailed for 12 years for fraud. Upon becoming aware of its error, TV3 subsequently broadcast an apology later that day. Mr Christie issued defamation proceedings and was awarded €200,000 in the High Court which was then discounted to €140,000 as TV3 had utilised the Offer of Amends procedure.
TV3 appealed this decision and asked the Court of Appeal to consider the:-
- Appropriate level of damages for unintentional defamation;and
- Discount to be applied to a damages award when the Offer of Amends utilised.
The Court of Appeal held that damages must be "measured and proportionate" and stated that excessive awards can have a chilling effect on the media. Taking into account the various issues including the length of the broadcast and the fact that Mr Christie was not named, the Court of Appeal considered that damages of €60,000 (as opposed to the €200,000 awarded by the High Court) would be more appropriate.
The Court of Appeal further held that the discount to be applied to this award as TV3 had implemented the Offer of Amends procedure should be 40% (as opposed to the 33% awarded in the High Court); thereby reducing the damages award from €140,000 to €36,000.
This is a significant reduction and highlights that the Court of Appeal is prepared to scrutinise and overturn damages awards which it feels are not "measured and proportionate".
Interestingly, the Court of Appeal considered that TV3's apology could have been more fulsome; suggesting that defendants that provide appropriate apologies as early as possible could potentially reduce their financial exposure by up to 50%.
This recent Court of Appeal decisions highlights the importance for defamation defendants to conduct an early and thorough risk assessment and where appropriate issue an apology and implement the offer of amends procedure so as to minimise, to the greatest extent possible, their financial exposure.