Court of Appeal: Solicitor awarded €140k in TV3 defamation case has damages reduced to €36k

About this case:

• Judgment:
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Delivering the judgment of the three-judge Court, Mr Justice Gerard Hogan acknowledged that the broadcast constituted a serious defamation of a “highly respected solicitor of good standing in the profession”, but that given the one-off nature of the broadcast, a significantly lower starting point was more appropriate in the circumstances.

The defamatory publication

In 2013, Mr David Christie had been representing Mr Thomas Byrne in a long running criminal trial when he was “unintentionally defamed by an evening television news bulletin broadcast by TV3 Television Networks Ltd on the 11th November 2013”. Mr Byrne was a former solicitor who had been charged with a multiplicity of fraud related offences and his case received widespread media coverage.

In the defamatory publication, TV3 ran a news bulletin featuring footage of Mr Christie making his way into the Criminal Courts of Justice, with the description:

“…Thomas Byrne has pleaded not guilty to 50 counts of theft, forgery, using forged documents and deception. The total amount involved is almost €52m.”

Given that Mr Christie had been unaccompanied by his client, Thomas Byrne, it was common case that thereafter Mr Christie was mistaken for Mr Byrne in his personal and professional capacity.

It was accepted that this was a result of human error, and TV3 subsequently broadcast an apology.

Consequences

Mr Christie described several incidents that occurred as a result of the broadcast, which he said still had “an effect on his solicitor’s practice and as of the date of the High Court hearing (5th May 2015) he was still getting calls from clients asking what he has done with their documents”.

In addition to this, he described social occasions when he was threatened and addressed as a “thief”, had a drink thrown over him, and that “he and his wife had stopped going out for dinner because people stared at them”.

The Court heard that TV3 “promptly broadcast an apology to Mr Christie”, and when the present proceedings for defamation were commenced, TV3 made an offer of amends pursuant to s. 22 of the Defamation Act 2009.

Further, TV3 “did not seek to defend the proceedings other than to make submissions as to how the court should assess the quantum of damages”.

Tv3 proposed a charitable donation of €1,000, “as a gesture of goodwill… without any admission of liability”, however this was rejected by Mr Christie who said that “he thought that the proposed apology and donation to charity was insulting”, and that it “belittled his position as a solicitor”.

High Court

The only evidence before the High Court was that of the television broadcast itself and the oral evidence of Mr Christie.

In the High Court, Ms Justice O’Malley stated that if the case had been dealt with as “a fully contested defamation action heard without a jury, with no mitigating aspects”, an award €200,000 would be appropriate.

Stating that it was not fitting to “allow further mitigation in the absence of a more comprehensive apology and a failure, in the running of the action, to take responsibility for the fact that the plaintiff was damaged in his reputation as a result of the broadcast”; that in the light of the offer of amends and an apology, a discount of one third should be allowed.

Accordingly, Mr Christie was awarded €140,000

Court of Appeal

TV3 appealed saying that the starting point of an award of €200,000 damages in a case of this kind was “just too high and that appropriate weight had not been given to the nature of the apology and the offer of amends”.

Further, TV3 contended that the level of the discount should have been higher and suggested a figure of 50%.

Mr Justice Hogan stated that the appealed raised “questions of how the court should assess damages in cases of unintentional defamation of this kind and, furthermore, what the appropriate level of discount in cases of this kind” where an offer of amends has been made pursuant to s. 22 of the Defamation Act 2009 should be.

Justice Hogan explained that this was the “first case where this aspect of the offer of amends procedure has fallen for consideration at appellate level”.

Level of damages

As the Supreme Court has frequently stated,

Citing Hynes-O’Sullivan v. O’Driscoll I.R. 436; de Rossa v. Independent Newspapers Ltd. 4 I.R. 432; Justice Hogan stated that the law of defamation involved the Oireachtas striking the balance between “two potentially competing constitutional rights”:

Considering the need for an award of damages for defamation to be “measured and proportionate”, Justice Hogan held that:

While this was a serious defamation of Mr Christie, it was not at the level which would merit a starting point of €200,000. Factors such as the one-off nature of the broadcast, the relatively short duration of the broadcast, the failure to name Mr Christie, the lack of animus towards Mr Christie and the fact that it was an obvious error which those closest to Mr Christie – his family, friends, work colleagues and clients – would surely know all take from the seriousness of the defamation. The appropriate starting point is, accordingly, a figure of €60,000.

While the apology published was satisfactory so that TV3 were entitled to a substantial discount, that discount figure could itself have been higher had the apology acknowledged that he had been defamed and had apologised for the distress and embarrassment which the publication had caused.

In the circumstances, Justice Hogan allowed the appeal to the extent that the starting figure of €200,000 was reduced to €60,000; and the level of discount was increased from one-third to 40%.

Mr Christie’s award of €140,000 was therefore substituted by a figure of €36,000.