Damages Development
Damages & Offer of Explanation
Christie v TV3 Television Networks Ltd [2017] IECA 128, Hogan J.
The claimant had been awarded €140,000 in damages for defamation in the High Court. This was reduced to €36,000 by the Court of Appeal.
“[W]hile this was a serious defamation of the plaintiff, it was not at the level which would merit a starting point of €200,000. Factors such as the one-off nature of the broadcast, the relatively short duration of the broadcast, the failure to name the plaintiff, the lack of animus towards the plaintiff and the fact that it was an obvious error which those closest to Mr Chtistie – his family, friends, work colleagues and clients – would surely know all take from the seriousness of the defamation. The appropriate starting point is, accordingly, a figure of €60,000.”
“It is reasonable to suppose that the new offer of amends system was introduced by the Oireachtas so that fully contested defamation actions might be avoided where this was possible by means of a swift apology to the injured party, the publication of a suitable apology and correction and the payment of compensation where this was warranted. Since it is very much in the public interest that the parties engage in what amounts to a conciliation process, it is only appropriate that the level of damages be reduced appropriately in acknowledgment of the defendant’s willingness to accept it’s wrong-doing …
In the present case TV3 not only swiftly acknowledged its wrong, but it offered to apologise and did apologise to the plaintiff on its main evening television bulletin within a few days of the first publication. This is all greatly to its credit and it should accordingly be rewarded by a suitable discount by reason of the fact that it also offered to make amends under s. 22 of the 2009 Act. In the High Court O’Malley J. measured that discount at approximately 33 per cent, but for my part I would go further: I consider that TV3 should receive a discount of 40 per cent in recognition of the swiftness of the apology and the general prominence given to the apology.
In this regard, one cannot but be impressed by the prominence given to the apology in the present case, since all too often in the past media outlets – while publicly professing a willingness to place corrections and to apologise for defamatory comment – have nonetheless sought effectively to hide corrections and apologies by ensuring that such are not given appropriate prominence. The level of discount in s.22 cases where the apology is grudging or not given appropriate prominence will obviously be a lot less than where the apology is fulsome, generous and given the prominence which it deserves. As McDermott J. observed in Ward [v Donegal Times Ltd] [2016] IEHC 711], the level of the discount will be lower where the defendant has failed to engage ‘adequately with the concept of an apology within the spirit and intention of s. 22’.
One may indeed further observe that but for a number of aspects of the apology offered and suggested the level of discount would have been even higher again. I would itemise the following factors as reducing somewhat the level of discount which might otherwise have obtained in the present case.
First, the apology did not state in terms that Mr Christie had been defamed and, indeed, as his counsel, Mr Ó Tuathail SC noted, the first time that the term was used by TV3 was in its submissions to this Court. The failure to acknowledge this obvious fact takes from the completeness of the apology.
Second, Mr Christie objected – and, in my view, quite rightly – to the level of compensation which TV3 originally offered, namely, an offer to make a payment of €1,000 to a charity of his choice. As Mr Christie pointed out in his evidence, this was virtually to trivialise the nature of the defamation which took place. He was entitled to say that not only was his reputation worth far more than that, but also that such an offer failed to recognise the seriousness of the defamation which had occurred.
Third, the apology simply stated that TV3 apologised ‘to Mr Christie and his family for any distress and embarrassment that may have been caused (emphasis supplied). In this context, however, the use of the indefinite (‘any distress and embarrassment’) rather than the definite article (‘the distress and embarrassment’) is more than a grammatical or linguistic quibble. The use of the indefinite article rather suggests on the contrary a level of mental reservation about the nature of the defamation concerned and its seriousness. It implied that Mr Christie might not have suffered any personal distress and embarrassment when this was obviously not so.
All of this is to say that while the apology published was satisfactory and that it did in its own right attract a significant discount, it might have been more complete and fulsome for the reasons I have just ventured to state. Had it been more complete and fulsome, then the level of the discount would have been even higher than the 40 per cent indicated in this judgment.”
Excessive Award
In Leech v Independent Newspapers (Ireland) Ltd [2014] IESC 79 the claimant was awarded almost €2 million arising out of defamatory remarks that she had an affair with the government minister by which her career was advanced. In Supreme Court did not overturn the award in view of the seriousness of the defamation.
“Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale…. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts, such as that in the de Rossa case. That said, the award made to Ms. Leech in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.”
Importance of Jury Finding
In McDonagh v Sunday Newspapers Ltd [2017] IESC 46 the Supreme Court reversed the Court of Appeal which quashed the verdict of the jury that the plaintiff was not a drug dealer. The Court of Appeal had dismissed the plaintiff’s claim for defamation.
“Certainly, a reasonable person might sympathise with the view that the plaintiff’s explanations, if he made them, do not read well. An observer might also be tempted to regard the plaintiff as a man who, as was colourfully put to him by the detectives, would escape without a speck if a bag of flour was thrown over him. Perhaps, on an alternate view, they might see him as the innocent victim of circumstances. Whatever view is preferred, the questions of whether the Garda suspicions were correct or not, and whether the newspaper was justified in what it wrote, was classically a jury decision. There was evidence both ways …”
In Nolan v Sunday Newspapers Ltd t/a The Sunday World [2017] IEHC 367, the court awarded €250,000 in compensation €30,000 in aggravated damages and another €20,000 punitive damages where it was alleged the plaintiff had organised swinger parties in circumstances he had only attended four such with his long-term partner. In the Court of Appeal: [2019] IECA 141 it was argued there was no damage to his reputation in that the plaintiff had accepted that it was his attendance that had damaged his reputation.
“The trial judge was entitled to not be bound by the respondent’s surrender to that proposition, and to form his own objective view based on all the evidence … just as a jury would have done had this case been heard by a jury, as to whether to the reasonable reader of the articles in their context bore the meanings contended for by the respondent, or indeed any of the meanings contended for in his statement of claim. It is that objective view as to the meaning of the articles that is important. That view is not formed by reference to what the respondent himself stated he understood the meaning to be, or whether he does or does not accept that there is the distinction to be drawn between attending and organising the parties. His own view is likely to be subjective, and therefore risking the frailty and unreliability that may sometimes attach to a subjective view, in contradistinction to an objective view.”
The Court of Appeal varied the High Court award, ordering €200,000 for general damages for defamation, a€30,000 for punitive damages, €30,000 for exemplary damages, and €50,000 damages for breach of the respondent’s constitutional right to privacy.
€10M Award Excessive
In Kinsella v Kenmare Resources, a jury in the High Court had awarded €10 million, including €1 million aggravated damages when a company issued a press release arising out of the resignation of the plaintiff from its audit committee due to an incident that occurred on a visit abroad. The plaintiff has slept walked into the bedroom of a female colleague and a press release wrongly implied that the plaintiff had made inappropriate advances. The Court of Appeal reduced the damages substantially: [2019] IECA 54.
Irvine J.
“… I agree that broad comparisons can be made with personal injuries awards and awards in other defamation cases. These can provide some sense check for the assessment of damages because they represent a system which attempts to put monetary values on injuries whether physical, psychological, or reputational. However, they cannot be treated as precise guidance. The assessment of damages for personal injuries has itself long been recognised as a business of equating incommensurables, or, as O’Higgins C.J. put it in Sinnott v Quinnsworth [1984] I.L.R.M. ‘assaying the impossible’. There is no market in personal injuries to which a court can refer for evidence and guidance. No one offers to sell, or would be permitted to buy, a broken leg. However, unless the cost of accidents causing injuries are imposed upon the person causing the accident, the inevitable outcome will be that the incentive towards careful conduct is reduced, and the number of accidents will increase. To some extent, a similar calculation arises here.
…it is clear, therefore, that no easy or direct comparison can be made in this regard with defamation cases. Nevertheless, as an indicator of courts’ approach to the business of ascribing a monetary value to the damage and injuries suffered by a plaintiff, the awards in personal injuries do provide some guidance. On this basis, plainly, the figure of €900,000 is comparatively speaking extremely high.”
“I will make just one final brief observation in relation to the type of exercise that might be carried out by an appellate court when asked to consider whether an award made by a jury in a defamation action was proportionate to the injury sustained. In the course of considering whether the award of €900,000 in McDonagh was proportionate and fair to the parties, O’Donnell J. at para. 24 of his judgment observed that the size of the award was such that the plaintiff could have lived off it comfortably for the rest of his life. He noted that the award would not be subject to tax and that in such circumstances it was worth considering just how long and hard an individual would have to work to amass such a sum and also what might be purchased with a sum of that magnitude. Accordingly, it would appear that these are yet further factors which might provide guidance concerning the proportionality of any award.
The Court of Appeal reduced the award of compensation to €250,000 and reversed the award of aggravated damages.