Supreme Court: ‘Offer of amends’ defence for defamation did not remove right to have jury assess damages

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Considering appeals from “companion cases” where the High Court and Court of Appeal had said that the plaintiffs were entitled to have the quantum of damages assessed before a judge sitting with a jury, Ms Justice Elizabeth Dunne said that removing the function of the jury in such cases was such a fundamental change that the Oireachtas would have made it clear if this was its intention.

Companion cases

In the Higgins case, Padraig Higgins sought damages for defamation arising out of three e-mails sent by a then employee of the Irish Aviation Authority (IAA) to the Civil Aviation Authority (CAA) in the UK and other employees of the IAA.

The IAA made an offer to make amends pursuant to s. 22 of the Defamation Act 2009 offering to publish a correction and apology, and to pay damages and costs as may be agreed or determined. Mr Higgins accepted the offer, but the parties were unable to agree terms and made an application to the High Court for directions in respect of a determination under s.23(1)(c) of the Defamation Act 2009.

The relevant part of Section 23(1)(c) of the Defamation Act 2009 provides that where there is no agreement on damages or costs “those matters shall be determined by the High Court… 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”.

In the High Court in May 2016, it was held that Mr Higgins was entitled to have the quantum of damages pursuant to s.23(1)(c) of the Defamation Act 2009 assessed before a judge sitting with a jury. In November 2016, this was affirmed by the Court of Appeal.

In the White case, Paul White sought damages for defamation arising out of an article and photograph published by the Sunday World newspaper in May 2013 which wrongly contained a photograph of Mr White, and suggested he was, inter alia, an associate of the “Real IRA” and dissident republicans.

Like in Higgins, an offer to make amends was accepted by Mr White but the parties could not agree on the terms. In the High Court in July 2016, following the decision in Higgins, it was held that Mr White was entitled to have the quantum of damages assessed before a judge sitting with a jury. In an appeal to the Court of Appeal, the short ex tempore judgment stated that the appeal should be dismissed for the reasons set out in Higgins.

Identical issue of law

As both cases raised an identical issue of law, the appeals to the Supreme Court were heard together. The issue for consideration was: “Whether a plaintiff is entitled to have damages assessed by a jury pursuant to the provisions of s. 23(1)(c) of the Defamation Act 2009 rather than by a judge sitting alone”.

In the High Court and in the Court of Appeal in Higgins, the Court considered the case of Lennon v. Health Service Executive 1 I.R. 92. In Lennon, it was held that the common law right to opt for jury trial in defamation cases had been expressly preserved by s. 48 of the Supreme Court of Judicature (Ireland) Act 1877. The right to opt for jury trial had never been abrogated by the Oireachtas and the Court rejected the idea that the High Court had a discretionary jurisdiction to create exceptions to that right for case management or similar reasons.

In the Court of Appeal in Higgins, it was reiterated that, had the Oireachtas intended to dilute the right to jury trial in the circumstances of this case, it would have done in clear language and not obliquely.

Supreme Court

In the Supreme Court, Ms Justice Dunne set out Section 23 of the Defamation Act 2009, and stated that the observation that the new defence of an “offer as amends” was about facilitating expeditious resolution of actions “certainly without involving a jury” was central to the issue as to the correct interpretation of the section.

Justice Dunne said that the purpose of the section was to facilitate early and speedy resolution of defamation proceedings, and possibly avoid the necessity to issue defamation proceedings. Justice Dunne observed that the phrase “the court” in the section was not defined, and there was no clarity as to how this should be interpreted.

Justice Dunne agreed with the judgment of the Court of Appeal in Higgins, and said that “while the right to trial by jury has been removed in many areas of the law where once it was the norm, one of the few areas in which it has been retained is for the conduct of defamation proceedings”. Further, “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 the damages”.

Emphasising that the Oireachtas would have used clear and express words if it intended such a fundamental change, i.e. to remove the function of the jury in determining damages in cases like the present; Justice Dunne differentiated the provisions of the UK’s Defamation Act 1996 which included such a provision.

Accordingly, Justice Dunne was satisfied that the phrase “the court” as used in s. 23(1)(c) meant a jury in the context of the assessment of damages.

Dismissing the appeals, Justice Dunne said that Mr Higgins and Mr White were entitled to have the damages to which they are entitled assessed by a jury.

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