knowledge | 29 November 2016 |
Court of Appeal Issues Landmark Decision on the ‘Offer to Make Amends’ Procedure in Defamation Law
The Court of Appeal has upheld a plaintiff ’s
entitlement to have damages assessed by a jury in the High Court, where the
parties cannot agree on the damages to be paid following an offer to make
In the recent case of Higgins v Irish Aviation Authority,1 the Court of Appeal determined that where a defendant has made an offer to make amends which has been accepted, but it has not been possible to agree on the level of damages payable, the plaintiff is entitled to have those damages determined by a jury rather than a judge sitting alone. This decision affirms the High Court’s conclusion that any dilution of the right to jury trial by the Oireachtas would have to be done in “clear language” and not “simply obliquely”.
Offer to make amends procedure
Section 22 of the Defamation Act 2009 permits a defendant to make an “offer to make amends” to a person in respect of an alleged defamation. The offer can be either a “full” or a “qualified offer” in respect of part of a statement or some defamatory meanings only. The offer must be made in writing. It can initially be made without specifying its precise terms but to be valid, it must include an offer to publish a suitable correction & apology and an offer to pay damages and legal costs. If the offer to make amends is accepted but the parties cannot agree on the appropriate sum of damages to be paid as part of the offer, section 23(1)(c) provides that damages “shall be determined by the High Court”.
In the one test case before the Irish courts so far, Christie v TV3,2 involving a serious defamation of a solicitor, Ms Justice O’Malley was asked to determine the appropriate level of damages taking into account any discount to be applied in mitigation of the offer to make amends. She allowed a 33% reduction3 but indicated that this discount might have been greater had the offer been more genuine and the apology more comprehensive. The parties in that instance did not challenge the judge’s jurisdiction to decide the level of damages.
Right to a jury determination
In the present case, the plaintiff insisted that he was entitled to have the level of damages payable under the offer to make amends determined by a jury. The Court of Appeal noted that this was a question of statutory interpretation as the meaning of the phrase “the High Court” in the 2009 Act could differ depending on where in the Act it appeared. Taking into account its decision in Lennon v HSE,4 which recognised a plaintiff ’s common law right to opt for jury trial in defamation cases in the High Court, the Court of Appeal considered whether the quantification of damages pursuant to section 23(1)(c) could involve a jury assessment of damages.
The defendant submitted that the language of the section did not permit a jury determination. First, it claimed the reference to “the High Court” in section 23(1)(c) must be to a judge sitting alone as the rest of the section assumed that meaning; for example, it referred to the High Court determining “costs” and this was a matter exclusively within the remit of a trial judge. Second, the defendant argued that if a jury was asked to determine damages this would negate the effects of this “novel” procedure, which was to enable a swift resolution of defamation claims and minimise costs where the defendant recognises a liability to the plaintiff and wishes to make reparations. This was based on the contention that “the Oireachtas never intended that the more complex superstructure of a defamation hearing associated with a jury trial should have to be deployed in a case of this nature”. Third, the defendant relied on section 5 of the Interpretation Act 2005, which provides that an ambiguous term may be construed to clearly reflect the intention of the Oireachtas, if such an intention can be ascertained from the act as a whole.
The Court of Appeal judgment
The Court of Appeal rejected the defendant’s main arguments. It accepted that the other reference to the High Court in the section is obviously to a judge sitting alone (since it relates to costs), but it did not necessarily follow that the reference to the High Court in the context of damages must be to the High Court sitting without a jury. The Court considered that, “for good or for ill, the role of the jury in the award of damages in defamation cases is embedded in the fabric of the common law”5 and the apparent failure of the Oireachtas to make a clear distinction, meant the Court had to apply the “presumption against unclear changes in the law”.
The Court nevertheless accepted that the offer to make amends procedure under section 22 was new and that it was intended to encourage parties to settle their disputes quickly and in a cost effective manner. The Court considered, however, that this does not fundamentally alter the nature of the task of assessing damages under section 23(1)(c), which may be performed by a jury. In the Court of Appeal’s view, the “novel” aspect of the procedure was that relating to the level of discount to be applied to damages, which depended on how “timely and fulsome” the measures in the offer were. The Court regarded this subtle change in the manner of assessing damages as one on which a jury could readily be instructed.
The Court also accepted that section 23(1)(c) could be seen as “ambiguous” but if it was the intention of the Oireachtas to dispense with a jury trial in this instance, it was not clear from the language of the 2009 Act “as a whole”. Clear statutory language would have been required in order to enact such a fundamental change to the role played by a jury in defamation trials.
Interestingly, the Court of Appeal was critical of the way in which the High Court contrasted the interpretation of the offer to make amends provisions in the 2009 Act with the similar offer of amends procedure in the United Kingdom. It was not appropriate to draw an inference as to whether the Oireachtas had followed the UK legislation or to interpret any Irish statutes by reference to an English report “which led to a similar English statute.”
The recently announced review of the Defamation Act 2009 by the Department of Justice & Equality may lead to future reforms of the procedure. For the time being, however, this decision makes it clear that a plaintiff retains the right to opt for a jury assessment of damages following an offer to make amends - even where no proceedings are yet in being. Although the offer to make amends procedure was intended to encourage swift and cost effective settlements, in practice, defendants are less likely to avail of it if they are open to an unpredictable jury assessment.
Also contributed by Jaime Flattery.
- Court of Appeal, 4 November 2016 per Hogan J
-  IEHC 694, High Court, November 2015
- In the UK, discounts on damages of up to 50% are typically allowed in mitigation of the offer of amends, though the level of discount will depend on a variety of factors
- Lennon v Health Service Executive  IECA 92
- This right was expressly preserved by section 48 of the Supreme Court of Judicature (Ireland) Act 1877 and section 94 of the Courts of Justice Act 1924
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.