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| €10 million damages awarded in defamation proceedings – the case for reform! |
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By
Julie O’Neill, Solicitor – McDowell Purcell
May 17, 2011 |
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In High Court defamation cases, plaintiffs can opt for trial by judge and jury or for trial by judge alone. Most plaintiffs opt for trial by jury due to the fact that damages awarded by a jury tend to be larger than those awarded by judges. Damages awarded by juries are often excessive and arbitrary due to the fact that the relevant legislation, which previously governed the conduct of defamation proceedings, did not permit judges to direct juries on the question of damages. Furthermore, the appellate system in Ireland made it difficult to overturn a decision of a lower court on a question of fact (including the quantum of damages), as opposed to a question of law. The Defamation Act 2009 (the “Act”), which applies to defamatory statements made after 1 January 2010, introduced a number of changes to Irish defamation law including new provisions regarding damages.
The arbitrary and excessive nature of jury awards is demonstrated perfectly by the recent case of Kinsella v Kenmare Resources plc & Another where the largest defamation award in the history of the State was awarded in November 2010.
In this case, Mr. Kinsella sued his former employer claiming that he was defamed by a press release it issued. The press release stated that the board of the company was to seek Mr. Kinsella’s resignation as chairman of the company’s audit committee arising out of an “incident” that occurred in 2007. The incident occurred at the company’s mine in Mozambique when Mr. Kinsella appeared naked at the room of the company secretary, Ms. Deirdre Corcoran. Mr. Kinsella claimed he was sleepwalking. The chairman of the company requested that the company’s solicitors investigate the incident and prepare a report. The investigation found that there was no conscious attempt by Mr. Kinsella to enter Ms. Corcoran’s room and that no improper motive existed. Following the publication of the report, the chairman of the company sought and received a written apology from Mr. Kinsella to Ms. Corcoran.
The jury was asked whether the press release stated or inferred that Mr. Kinsella had made an inappropriate sexual advance to Ms. Corcoran. The jury found that it did and awarded Mr. Kinsella €9 million in compensatory damages and €1 million in aggravated damages. The case is currently under appeal to the Supreme Court.
Under the old rules, juries were given some basic guidelines in assessing damages, for example, they were told that an award of damages should represent fair and reasonable compensation for the injury suffered. However, the judge was not permitted to put actual figures to the jury. The Act has attempted to address this issue. Section 31 permits both parties to a defamation action to make submissions to the court in respect of damages and requires that the judge in a High Court case give directions to the jury on the issue. Section 31(4) of the Act also provides a list of eleven criteria to which the court is to have regard including the gravity of the allegations, the means of publication, evidence regarding the reputation of the plaintiff.
Section 11 of the Act seeks to address the difficulties in appealing a case on the quantum of damages. Section 11 provides that, on an appeal to the Supreme Court from any decision of the High Court in a defamation case, the Supreme Court may substitute its own award of a specific amount of damages for that awarded to the plaintiff by the High Court. Previously, a defendant could appeal an award of damages by a jury in the High Court if it could be shown that the award was excessively high. If the Supreme Court agreed that the award of damages were excessive, it could then remit the matter back to the High Court for re-hearing.
While the judge is now required to give directions on the quantum of damages to the jury, the decision on the quantum of damages remains a decision for the jury. Some commentators believe that the Act does not adequately address the unfettered power of the jury in relation to the assessment of damages and fails to protect against excessive jury awards. Many practitioners believe that the Act should have implemented the proposal of the Law Reform Commission that the responsibility for assessing damages should be removed from the responsibility of the jury.
Julie O’Neill is a solicitor specialising in employment law. Julie provides both employers and employees with advice in respect of contentious and non-contentious employment matters. She has advised on various aspects of employment legislation including unfair dismissal, redundancy, working time and holidays, industrial relations, immigration, protective leave and employment aspects of commercial transactions.
Julie O’Neill,
McDowell Purcell Solicitors,
The Capel Building
,
Mary’s Abbey
,
Dublin 7
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Tel: 01 828 0600
Email: joneill@mcdowellpurcell.ie
McDowell Purcell
Employment Law Solicitors
Irish Solicitors
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