The Court of Appeal recently (4 May 2017) gave judgment in a case concerning defamation by TV3 of a solicitor, Mr David Christie. In the High Court Ms Justice O’Malley had awarded damages to Mr Christie in the sum of €140,000.
The case concerned an unintentional defamation of Mr Christie by TV3. Mr Christie had represented disgraced solicitor Thomas Byrne in the course of a long running criminal trial in 2013. During the course of the trial, a TV3 news bulletin broadcast footage of Mr Christie alone outside the Criminal Courts of Justice accompanied by the following dialogue:
“The jury in the trial of solicitor Thomas Byrne will resume its deliberations tomorrow morning. It has already spent several hours considering its verdict. The 23 day trial ended this morning with a summing-up from Judge Patrick McCartan. Thomas Byrne has pleaded not guilty to 50 counts of theft, forgery, using forged documents and deception. The total amount involved is almost €52 million.”
In his summary of the facts of the case in the Court of Appeal judgment, Mr Justice Hogan stated that it seemed clear that the footage showed Mr Christie rather than Mr Byrne and this was as a result of human error.
Mr Christie swiftly took action following the broadcast and instructed a solicitor to write to TV3. TV3 accepted that a mistake had been made and offered its apologies to Mr Christie. They also offered to broadcast a clarification. Shortly thereafter TV3 broadcast a clarification and apology, although the terms of that apology had not been agreed by either Mr Christie or his solicitor. Mr Christie initiated proceedings in defamation. Early in the proceedings TV3 made a formal offer of amends pursuant to the facility for doing so under Section 22 of the Defamation Act 2009. The offer of amends procedure is a facility in the law of defamation to allow a publisher make a suitable correction of the statement concerned with an apology and to offer to pay the person a sum in compensation as may be agreed upon or determined by the Court. It is designed to short-circuit potentially lengthy litigation in circumstances where the defending party wishes to “right the wrong” at an early stage and potentially reduce the amount of damages which might otherwise be payable.
In his judgment, Mr Justice Hogan reviewed the level of damages awarded by the High Court. He discussed the need to balance the two potentially competing constitutional rights, namely the protection of the right to a good name and the right to free speech and expression. He laid emphasis on the fact that this constitutional balance necessarily implies that an award of damages for defamation must be measured and proportionate. Mr Justice Hogan recognised that the defamation in question was a serious defamation and he also recognised that the potential for confusion, distress and embarrassment was considerable. However, he felt that the High Court had fallen into error in determining that it was defamation of such a character as would merit a starting point, in terms of assessing the damages in the case, in the region of €200,000.
In determining that the award of damages should be reduced Mr Justice Hogan took account of all of the relevant factors in the case which he stated to be as follows:
- A once-off nine second broadcast.
- The fact that the Plaintiff was not named.
- The very limited range of viewers who might think that the news item referred to Mr Christie.
- The absence of any animus towards Mr Christie.
- The fact that it was plainly a case of mistaken identity.
In all of these circumstances Mr Justice Hogan determined that the appropriate starting point in determining the damages was €60,000, a figure which he felt to be proportionate in the circumstances.
Mr Justice Hogan then went on to consider what reduction should be made from this figure of €60,000 in light of the fact that an offer of amends had been made. He decided that TV3 should receive a discount of 40% in recognition of the swiftness of the apology and the general prominence given to the apology. He went on to state that the level of discount which might be applied in cases where an offer of amends has been made but where the apology is grudging or not given appropriate prominence will be a lot less than where the apology is fulsome, generous and given the prominence which it deserves.
The upshot of Mr Justice Hogan’s analysis of both the appropriate level of damages in defamation claims and also the appropriate discount to be applied where an offer of amends has been made was that the High Court award of €140,000 was reduced to an award of €36,000.
The case is an important one as it involves the first consideration by the Court of Appeal of how the Court should assess damages in a case where an offer of amends has been made. Furthermore, the case is important because of its analysis of the circumstances which the Court felt should be considered in assessing the level of damages before any discount is applied by reason of the offer of amends previously made.