£1/4m libel damages for O'Brien overturned

The Supreme Court has overturned an award of £250,000 libel damages made by a High Court jury to millionaire businessman Mr Denis O'Brien over articles published in the Irish Mirror.

The court directed there should be a retrial on the amount of damages only. However, four of the five judges rejected the newspaper's application to reconsider a previous Supreme Court decision that guidelines and information on the level of damages in libel actions should not be given to a jury by a trial judge and counsel.

Ms Justice Denham was alone in her view that such guidelines and information should be given. She said there should be "a rational relationship" between schemes for awarding damages. To have damages to reputation grossly in excess of payments for serious personal injury - such as to paraplegics - raised for consideration the whole rationale of the schemes for awarding damages.

She disagreed with the majority court's view that it should not review the Supreme Court's earlier refusal to consider guidelines on damages for juries - set out in a judgment of July 1999 upholding a £300,000 award for damages for libel to Dublin Labour Party TD and MEP Mr Proinsias De Rossa against the Sunday Independent.

There were "compelling reasons" to review that decision, she said. The issue was of public interest and importance in a democracy. The issue of damages and rules related to these was a matter which may be addressed by the Oireachtas but, in the absence of legislation, the court could use its common law jurisprudence to assist the jury and trial.

Ms Justice Denham was one of four judges who granted the appeal by Mirror Group Newspapers Ltd, its editor-in-chief, Mr Piers Morgan, and two journalists Mr Karl Brophy and Mr Neil Leslie, against the size of the award to Mr O'Brien, made in November 1999.

Mr O'Brien (41), founder of Esat Telecom, had claimed the articles in the Irish Mirror on June 19th 1998 meant he had paid £30,000 as a bribe to a former Fianna Fail minister Mr Ray Burke to get a radio licence for 98FM and that his business was based on corruption. The articles were based on an anonymous note said to have been shown to a journalist by a "senior politician". Mr O'Brien had denied the allegations.

A High Court jury decided after a three-day hearing last November that Mr O'Brien had been libelled and awarded damages of £250,000. The Mirror appealed to the Supreme Court against the amount of the damages.

In his judgment yesterday, the Chief Justice said the award of damages to Mr O'Brien, unless set aside, would be the second-highest award of damages upheld in a libel case, the highest being the £300,000 award to Mr De Rossa

While the statements made about Mr O'Brien were undoubtedly seriously defamatory and justified the award of substantial damages, the libel could not be regarded as among the grossest and most serious libels. It was legitimate to compare the award to Mr O'Brien with that made to Mr De Rossa.

The libel of Mr De Rossa was significantly more damaging than the admittedly serious statements concerning Mr O'Brien, the Chief Justice said.

The Chief Justice added that the damages awarded to Mr O'Brien were comparable to those awarded in the most serious personal injury cases of paraplegic or quadriplegic injuries.

He was satisfied the award was disproportionately high and should be set aside.

The Chief Justice rejected the Mirror's argument that the Supreme Court should review that part of its decision in the De Rossa case on the criteria laid down by the Irish courts for determining whether an award of damages in a defamation action by a jury was consistent with the Irish Constitution and the requirements of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECPHRFF).

In the De Rossa case, four of the five Supreme Court judges declined to apply in Ireland a decision of the English Court of Appeal holding that guidance on awards of damages - including comparison with awards in other libel cases, information on awards in personal injury cases and the level of awards suggested by the trial judge themselves - should be given by trial judges to juries.

Mr Justice Keane said that in the present case, the Mirror was asking the Supreme Court to find its decision of less than a year ago was so clearly wrong it should be set aside. There was no reason to do so and the appeal should be dealt with on the basis that the law was as stated in the De Rossa case.

However, Ms Justice Denham, in her judgment also allowing the appeal and finding the award disproportionate and excessive, said the De Rossa decision should be reconsidered.

There was a real issue whether the scope of judicial control at the trial and on appeal offered adequate and effective safeguards against disproportionately large awards of damages, she said.

Instructions to the jury on the level of damages to be awarded should be altered so as to give greater assistance to the jury.

Mr Justice Murphy and Mr Justice O'Higgins also allowed the appeal. Mr Justice Geoghegan, while agreeing the De Rossa case should not be reconsidered, gave the sole judgment upholding the amount of the award.

He held it was an "extremely serious" libel made when the Moriarty and Flood tribunals were "hitting the headlines" and when it was a "gross understatement to say that in the mind of the public there was a sniff of corruption in the air".

The case will be mentioned again next Wednesday.