Sunday Newspapers Limited to pay damages for defamation after delaying in delivering of defence

About this case:

• Judgment:
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Although the defendants published a correction on 28th December 2014, it was claimed that this was not of the same size or prominence as the original article and which, by reason of its lack of clarity and detail, and the fact that it was published during the holiday period did nothing to alleviate the damage caused to the plaintiff.

The original statement of claim was delivered on 25th February 2015, after which warning letters regarding the delivery of defence were issued on 30th March 2015, 20th April 2015 and 25th May 2015.

Since no defence was received, a motion for judgment was issued and made returnable for 13th July 2015 and a consent order as described above was made on that date.

No defence was delivered, and a further warning letter was issued on 25th August stating that the plaintiff would be seeking judgment in default of defence.

At this point, the solicitors for the defendant responded, claiming that they had “reminded our counsel to finalise the drafting of the defence in this matter and we shall revert to you within fourteen days and in the circumstances would ask if you could hold off issuing any motion to such time.”

However, rather than issue a defence, on 20th October the defendants sent the plaintiff an offer of amends for the purposes of s.22 of the Defamation Act 2009, offering to make a suitable correction and sufficient apology, to publish the correction and apology in such manner as is reasonable and practicable in the circumstances, and to pay compensation or damages and such costs as may be agreed.

The defendants followed this with a further letter, noting that under s.22(3) of the Defamation Act, an offer to make amends shall not be made after the delivery of a defence, and that it was a defence to prove that an offer of amends had been made and was not accepted.

Therefore, they stated their intention to wait for an acceptance or rejection of their offer before making a defence.

The plaintiff responded the same day, asking for particulars about what corrections, apologies, terms of publication and damages were being suggested. However, the defendants replied stating that if the offer was accepted, specific terms could be agreed or determined by a Court.

Counsel for the plaintiff relied upon Order 27 rule 8 of the Rules of the Superior Courts, which allows a judgment in default of defence to be made unless there are special circumstances exist which explain and justify the failure to provide a defence.

It was submitted that in this case no special circumstances existed, and the plaintiff was entitled to judgment.

Furthermore, the offer to make amends was not a conciliatory offer, but an attempt to gain a procedural advantage over the plaintiff, because if the plaintiff accepted the offer to make amends, and agreement could not be reached upon the terms, then the damages payable to the plaintiff would be determined by a Court rather than by a jury.

However, if the offer was declined, the plaintiff would have to prove malice on the part of the defendant in making the publication, which is clearly a higher standard of proof than would otherwise apply.

The defendants countered that there were special circumstances, namely that the plaintiff had not accepted or rejected the offer, and was therefore manufacturing the failure to deliver a defence.

Second, the plaintiff sought a declaration that “the statements and/or photograph made about the plaintiff and published by the defendants… were false and untrue.”

The defendants submitted that this kind of order could not be made by the High Court because that jurisdiction is expressly conferred upon the Circuit Court only pursuant to section 28 of the Act.

That being the case, it was argued that the proceedings were not maintainable by the plaintiff in their present form and that this was a special circumstance which explained and justified the defendants’ failure to deliver a defence.

The defendants also cited Tesco Stores Ltd. v. Guardian News and Media Ltd. & Alan Rusbridger E.M.L.R 5 as showing that an offer to make amends must be accepted or rejected within a reasonable time, and Corrigan v. Irish Land Commission 1 I.R. 317 in support of the proposition that the plaintiff could not seek judgment while preserving the option of accepting or rejecting a statutory offer of amends.

In relation to the defendant’s submission that the Court did not have jurisdiction to grant a declaration, the Judge found that as other reliefs were such that could be obtained from the Court, this did not constitute a special circumstance.

The Judge acknowledged that acceptance or rejection of an offer to make amends has a bearing upon the defence that will be filed by a defendant in the event that the offer is rejected, and that a defendant was entitled to make an offer to make amends before filing a defence.

However, the Judge rejected the argument that it was the plaintiff who is putting the defendants in default.

It was found that no explanation had been given to the Court as to why they had failed to make a defence, or why it had taken so long to issue the letter of offer to make amends.

It was found to have been clear from the very outset that the defendants were aware of the circumstances giving rise to the proceedings, and had as much time as they needed to file a defence or an offer to make amends.

The Judge concluded: “There can be no doubt at all that the offer to make amends made on 30th October, 2015 could have been made much earlier, and most probably could have been made within the time for the filing of a defence as prescribed by Order 21, rule 1 and certainly in advance of the issue of the first motion for judgment on 30th June, 2015, not least because the defendants have chosen to make an offer to make amends in principle and not in terms.

Instead, the defendants sat on their hands and chose not to make the offer until a month after the issue of the second motion for judgment. The reason for the delay therefore cannot possibly be said to be the failure of the plaintiff to respond to the letter of amends, but rather is the dilatoriness on the part of the defendants in making the offer of amends.

That could not be said to be a special circumstance for the purposes of Order 27, rule 8(1) and accordingly I will grant judgment in favour of the plaintiff and direct that damages be assessed in due course by a judge and jury.”