The offer of amends procedure was introduced by Section 22 of the Defamation Act 2009 (the “Act”). It was anticipated that it would lead to the settlement of defamation claims on a cost effective basis and, even where an offer of amends was not accepted, would lead to a discount in the damages awarded at trial. Where the parties do not agree as to damages or costs following an offer to make amends, those matters must be determined by the High Court under Section 23(1)(c) of the Act. The question arises as to whether there is a right to a jury trial in respect of these matters.

There has only been one case to date where the amount of damages to be awarded has come to trial following an offer of amends and in that case the trial judge sat without a jury.

In a decision handed down on 4 November 2016, the Court of Appeal upheld a High Court decision that, notwithstanding that an offer of amends has been made and accepted pursuant to Section 22 of the Act, a Plaintiff is nonetheless entitled to have his or her claim for damages under the Act determined by a jury where the parties cannot agree on an appropriate figure.

In this case, although Mr Justice Gerard Hogan felt that the issue presented was a difficult and troubling one, with no completely satisfactory or clear cut answer, he held that on balance the right to a jury trial in respect of the determination of damages had been preserved for the following reasons:

• Although the offer of amends procedure is innovative and novel, it does not fundamentally alter the nature of the task of assessing damages which essentially remains the same and one which regularly confronts juries in contested defamation actions.  The only new element is the level of discount of damages to be granted by reason of the timely and fulsome offer to make amends and this is a matter on which a jury could readily be instructed.

• It does not necessarily follow that the reference to the High Court in Section 23(1)(c) of the Act insofar as it relates to the award of damages means that this must be also be a reference to a High Court judge sitting alone without a jury.  There is no fundamental inconsistency in concluding that the reference to the High Court in one context (costs) must be to a judge sitting alone while in another (the award of damages), it must refer to a judge sitting with a jury. 

• Although it might have been better had the Oireachtas taken the opportunity to put the matter beyond doubt by the use of clear and express language in the section including or excluding (as the case may be) the role of the jury, the role of the jury in the award of damages in defamation cases is embedded in the fabric of the common law and that right was expressly preserved by Section 48 of the Supreme Court of Judicature (Ireland) Act 1877 and Section 94 of the Courts of Justice Acts 1924.

As a result of this decision, it is questionable whether a defendant will as readily consider making an offer of amends as they have previously done.  It also begs the question of the role of juries in defamation actions as a whole. This is an issue that has attracted a lot of commentary in the media in recent weeks following on from the decision of the Tánaiste and Minister for Justice and Equality to review the operation of the Defamation Act 2009.

Contributed by Fiona Barry