Good name worth more than good health
CORRECT me if I’m mistaken... but you have awarded compensatory damages of €9 million and aggravated damages of €1m.”
Even the judge at the High Court in Dublin was stunned by Wednesday’s decision by a jury to give businessman Donal Kinsella the highest libel award in the history of the state.
If Judge Éamon de Valera, grandson of our former president, appeared to be taken aback, he was not alone. When the full import of the jury’s verdict became clear, there were gasps of incredulity. What was almost as jaw-dropping as the compensatory amount of €9m was the further €1m awarded because the 11 jurors felt that the cross-examination of Mr Kinsella by the company’s lawyers was too aggressive. Counsel for the defendants, Kenmare Resources, described the total award of €10m as “off the Richter scale”.
Yet Ireland has, for years, played host to some of the highest libel awards in the world. Prior to Wednesday’s landmark decision, the largest compensation payout for libel was awarded to former PR consultant Monica Leech in June 2009. She received €1.87m in damages through the High Court after she sued Independent Newspapers over a series of articles featured in the Evening Herald in 2004. The mother-of-two contended the newspaper made false allegations that she received public contracts as a PR consultant because she was having an affair with the then environment minister Martin Cullen.
Independent Newspapers, which had denied the allegation, said the award was a glaring example of the pressing need for the review of Ireland’s defamation laws.
They had a point.
Under Irish law, a bruised ego is a far more valuable commodity than a broken back — or worse.
The case of Alan O’Gorman illustrates this well. At the age of 21, Alan, from Co Meath, had his stomach needlessly removed by surgeons at St Vincent’s Hospital in Dublin who wrongly diagnosed him with cancer. While Kinsella’s good name has been deemed worthy of €10m, O’Gorman was awarded just €450,000.
In fact, the highest personal injury award in Irish legal history is also quite a bit less than the amount awarded to Mr Kinsella. A young girl who suffered cerebral palsy due to the medical negligence surrounding the care afforded to her and her mother during the course of her delivery was settled for €7.5m.
The second highest personal injury award was €4.65m, given to Darragh Crowley from Millstreet, Co Cork, who was left totally blind, severely brain-damaged, doubly incontinent and requiring 24-hour care after undergoing a procedure at Cork University Hospital when he was two years old.
Other recent high awards for libel include a €900,000 jury award in 2008 to a father-of-eight defamed by the Sunday World and the 2006 €750,000 award to businessman Denis O’Brien against Mirror Group Newspapers. The O’Brien award had originally been IR£250,000 but MGN appealed it on the grounds that the award was excessive. The matter was sent for retrial on the issue of damages, only for a new jury — who knew nothing about the previous award — to multiply it.
For years Ireland gave unlimited discretion to juries in assessing damages and its long-standing failure to give jurors any guidance on damages. Such was the insanity of disproportionate jury awards and the exorbitant costs of libel actions that a new defamation regime was introduced last year to shepherd, in the words of one Irish law firm, “the wandering sheep” sitting on Irish juries.
But the Kinsella jury, who found that the press release was intended to embarrass him or put pressure on him in relation to his position in the company, did not benefit from these new rules as the case preceded the introduction of the 2009 Defamation Act.
The new act introduced a new remedy into defamation law. This permits a plaintiff, instead of suing for damages, to seek an order in the Circuit Court that the publication publish an apology, correction or retraction and desist from republishing the defamatory material. The action is heard without a jury.
In cases heard by a jury, the new act also instructs a judge to direct the jury as to the amount of compensation they may award. It is expected that this will lead to a reduction in the level of damages awarded in the future.
Outside of Ireland, a person’s good name which has been unfairly tarnished may also be subject to an award for libel but rarely to the extent seen here. Earlier this month Real Madrid’s Cristiano Ronaldo accepted substantial undisclosed libel damages over a claim he put his injured ankle at risk by “living it up” in a Hollywood nightclub.
The player settled his action before London’s High Court against Telegraph Media Group Ltd over a July 2008 story: Ronaldo back in the limelight. While the newspaper accepted the allegations were untrue and apologised, the damages, though described as ‘substantial’, sources say were in the tens to hundreds of thousands and nowhere near the level awarded to Donal Kinsella.
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