The Supreme Court recently substituted a defamation damages award in an appeal from the Court of Appeal, giving important guidance around the assessment of damages in defamation cases. We explore the leading judgment of the Supreme Court in this note, together with the proposed changes to Irish defamation laws outlined in the recently published Review of the Defamation Act 2009.
(i) Higgins v The Irish Aviation Authority
The Supreme Court (Court) in Higgins v The Irish Aviation Authority IESC 13 unanimously allowed an appeal in defamation proceedings instituted by a senior commercial airline pilot against the defendant regulator, the Irish Aviation Authority (IAA). MacMenamin J delivered the leading judgment which provides valuable guidance on defamation law issues, including the assessment of general damages, aggravated damages, discounts for offers of amends and guidance to juries as to levels of awards.
The case is significant in that it was the first case in which a jury made an award following an offer of amends, and it was the first case in which a jury in defamation proceedings was provided with information on the level of awards in earlier cases.
Background
The proceedings arose out of emails sent internally and externally by the Irish Aviation Authority (IAA), insinuating that the plaintiff had flown a microlight aircraft unauthorised, and which the plaintiff claimed were defamatory of him. The defendant admitted liability and offered to make an apology and to make amends. The proceedings were the subject of an earlier Supreme Court ruling on the offer of amends procedure set out in the Defamation Act 2009 (2009 Act). Section 23 of the 2009 Act prescribes that where an offer to make amends has been made by the defendant and accepted by the plaintiff, but the parties cannot agree on the amount of damages or costs, the High Court shall determine those amounts. The Court in 2018 found that the word “court” for the purposes of section 23 meant a jury rather than a judge, and so the plaintiff is entitled to have damages determined by a jury.
The case came before the High Court for assessment of damages only. The jury awarded the plaintiff €300,000 in respect of general damages, €130,000 in respect of aggravated damages and discounted the award by 10% in light of the offer of amends made by the defendant. The IAA appealed to the Court of Appeal (COA), which found that the High Court damages award was disproportionate, excessive, and unreasonable. The COA reduced general damages to €70,000, aggravated damages to €15,000 and maintained the 10% discount.
Supreme Court Decision
Leave to appeal to the Court was granted to the plaintiff partly on the basis that a judgment might include guidance:
– as to the way a jury should be instructed as to quantum in defamation cases,
– the discount for offers of amends, and
– whether it might be possible to set out “bands” of appropriate damages.
– the discount for offers of amends, and
– whether it might be possible to set out “bands” of appropriate damages.
The Court allowed the appeal and awarded the plaintiff €175,000 in general damages, €50,000 in aggravated damages, and maintained the 10% discount for the offer of amends resulting in an award to the plaintiff of €202,500.
MacMenamin J delivered the majority judgment and concluded that in awarding €300,000 in general damages, the jury substantially departed from the appropriate parameters of the case, and it was not defamation in the highest range. However, the COA, in reducing the award by over one quarter, did not place sufficient weight on the respect due to jury awards, or that the defamation was very serious and damaging to the plaintiff, a pilot in a position of trust and high responsibility. MacMenamin J noted the difference between this and other defamation cases, where the defamation usually concerns a publication in the media or other platforms. This case concerned emails sent from an IAA official, who ought to have known their consequence, where the role of the IAA was that of a supervisory and regulatory authority. MacMenamin J then went on to set out indicators or guidelines on general damages awards in defamation cases.
Categories of Defamation General Damages Awards
MacMenamin J emphasised that his guidelines on damages awards in defamation claims were simply that, mainly due to the variable facts in each case. From a review of the case law, MacMenamin J found that defamation cases fall within four general categories or range of awards;
- Moderate defamation: Awards of €0 to €50,000
- Medium defamation: Awards of €50,000 to €125,000.
- Serious defamation: Awards of €125,000 to €199,00
- Top of scale defamation: Awards over €200,000 but rarely over €300,000.
In addition to the four general categories, MacMenamin J referred to other exceptional cases, such as de Rossa v Independent Newspapers where €460,00 was awarded and Leech v Independent Newspapers where the award was €1.2 million. However, both of those cases involved serious damage to a person’s reputation, and according to MacMenamin J, fall outside the general categories.
Applying the categories to the instant case, MacMenamin J found that general damages fell at the higher end of the third category. The defamation was a very serious one by a regulatory body, albeit to a relatively limited audience. A majority of the Court found the appropriate figure for general damages was €175,000.
Aggravated damages
Section 32(1) of the 2009 Act empowers a court to award aggravated damages, where the harm suffered by the plaintiff was worsened by the defendant’s conduct of the defence. However, as MacMenamin J stressed, this does not prevent a defendant from conducting a robust defence, rather they cannot conduct the defence in a manner which aggravates the original defamation. In this case, the IAA made allegations against the plaintiff in correspondence that were largely without foundation. The Court held that the allegations and conduct of the defendant in its defence aggravated matters and warranted a figure of €50,000 for aggravated damages.
Discount for Offer of Amends
When considering the discount to be applied following an offer of amends, MacMenamin J found that a court should take account of the “timing, content of the offer, and the conduct of the defendant”. The discount should operate on a sliding scale from 0% to 50%, with a 50% discount being the “gold standard”. In this case, where the offer of amends was ruled six years after the defamation, the Court unanimously upheld the COA’s discount of 10% of the total award.
Guidance to juries
There is a duty on the trial judge to ensure the jury is focused on matters relevant to damages. MacMenamin J gave guidance around a judge’s charge to the jury on general damages in defamation cases, although emphasising a jury must take all the circumstances of the case and the factors set out in section 31 of the 2009 Act into account in its determination.
The appeal court’s jurisdiction
Hogan J delivered a dissenting judgment on the jurisdiction of appeal courts in defamation cases. Hogan J concluded that section 13 of the 2009 Act (which deals with appeals) evinces an intention to alter the legal status of jury awards. He suggested that under the 2009 Act, the appeal court had a much wider discretion to recalibrate jury awards of damages. MacMenamin J (and the majority) disagreed, holding that section 13 does not reveal such an intention, or an intention to change the power of the appeal court to set aside a jury award where it is objectively flawed and disproportionate.
(ii) Report of the Review of the Defamation Act 2009
Shortly before the Higgins judgments were delivered, the Department of Justice published its Report of the Review of the Defamation Act 2009 (Review) on 1 March 2022. While the proposals under the Review are simply recommendations at this stage, they are significant in terms of their potential impact on defamation proceedings.
The principal recommendations propose:
- abolishing the use of juries in High Court defamation cases
- providing an express power for the court to dismiss defamation claims not progressed by a plaintiff within two years of issuing the proceedings (unless special circumstances apply)
- to address the perceived risk of international forum shopping (or defamation tourism) into Ireland, the court must be satisfied that Ireland is the most appropriate place for the action to be heard
- introducing an anti-SLAPP mechanism to allow a person to apply to court for summary dismissal of defamation proceedings where the proceedings are a “Strategic Lawsuit Against Public Participation”
- Introducing Judicial case management of defamation claims
- providing a statutory obligation for parties to consider mediation
- providing a statutory power to grant a “Norwich pharmacal” order. This will make it easier and quicker to obtain such an order, by providing that the Circuit Court can grant them, rather than only the High Court, as at present.
The government press release is available here. We will publish further updates as they happen.
Key Takeaways:
The Higgins judgments and the Review recommendations represent welcome developments in defamation law in Ireland. In particular, the guidance delivered by MacMenamin J around the categories of defamation damages award will be of benefit to practitioners, plaintiffs, defendants, judges and juries in the assessment of general damages. Defamation cases are in the minority of civil cases that still retain the use of a jury. Whilst the majority judgments in Higgins uphold the principle of respect due to the awards of juries, the recommended abolition of juries in defamation cases in the Review is an area to watch. It remains to be seen whether the guidance on damages will have a tangible impact on defamation damages awards in the future.
