Lack of clarity in legislation means juries can assess damages in "offer of amends" defamation cases

The Supreme Court has ruled juries can assess damages in two defamation actions after saying there is a lack of clarity in part of the legislation introduced to provide early resolution of such cases.

Lack of clarity in legislation means juries can assess damages in "offer of amends" defamation cases

By Ann O'Loughlin

The Supreme Court has ruled juries can assess damages in two defamation actions after saying there is a lack of clarity in part of the legislation introduced to provide early resolution of such cases.

The 2009 Defamation Act did not clearly state whether a reference to "the court" meant that a procedure enabling early resolution of defamation proceedings could be ultimately dealt with by a judge sitting alone, or by a jury, the court said.

The Act introduced an "offer of amends" procedure whereby for example, a newspaper would make an offer to a person who claimed they were defamed to resolve the matter. If the offer was not accepted, it could then be referred to the High Court for resolution.

However, the Supreme Court said, there was a lack of clarity in the Act about whether than meant just a judge or a judge with a jury.

The court made the comments when it rejected two separate appeals against findings that two men, who it was accepted had been defamed, were entitled to have juries assess the amount of damages they should get rather than by just a judge sitting alone.

In the first case, Padraig Higgins claimed he was defamed in three emails sent by the Irish Aviation Authority (IAA) to its employees, and to the Civil Aviation Authority (CAA) in the UK. The defamatory emails arose out of communications sent by the CAA about an incident Mr Higgins was involved in while flying a microlight aircraft in the UK.

The IAA made an offer of amends offering to publish a correction and pay compensation. However, the parties were unable to agree the terms of the offer and Mr Higgins asked that the High Court direct that a jury should assess damages.

The second case involved the use of a photograph of the wrong man by the Sunday World in May 2013. Paul White from Beechfield Avenue, Clonee, Co Meath, said the photo and an accompanying article grossly defamed him.

The Sunday World made an offer of amends but again there was no agreement on its terms.

High Court judges found in both cases they were entitled to have a jury assess quantum of damages.

The IAA and Sunday World brought appeals to the three-judge Court of Appeal (CoA) which also found against them.

They then brought a further appeal to the Supreme Court which today upheld the CoA decision.

Giving the five-judge Supreme Court's decision, Ms Justice Elizabeth Dunne said the right to trial by jury has long been a feature of defamation proceedings and is one of the few areas of law, where it had been the norm, where it has been retained.

Even in cases where liability for defamation has been admitted, a jury determines damages, she said.

The fact that the offer of amends results in a settlement of cases does not mean the determination of the sum to be paid in damages under Section 23(1) of the 2009 Act "necessarily involves a determination by a judge sitting alone", she said.

"One would have expected to see clear and express words used by the Oireachtas in this legislation if it had intended to remove the core function of the determination of damages from a jury in cases such as this, being such a fundamental change".

Unlike a provision which was made in the UK's 1996 Defamation Act, no such provision was included in our 2009 Act, she said.

Accordingly, the words "the court", as used in Section 23(1) of our Act, means a jury in the context of assessment of damages, she said.

Ms Justice Dunne also said it was not clear from the 2009 Act how it was envisaged that the new (offer of amends) procedure was meant to work in practice to achieve the objective of speedy resolution of cases.

"It is surely desirable that where changes are proposed which may have very far reaching effects, that they should be carefully tailored to achieve their intended objective and be clearly expressed", she said.

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