The Supreme Court has provided guidance concerning defamation damages in an important judgment awarding an Aer Lingus pilot €202,500 over defamatory and false emails sent about him by the Irish Aviation Authority (IAA).
By a four to one majority, the court granted Captain Padraig Higgins' appeal against a decision by the Court of Appeal (CoA) which slashed to €76,500 a High Court jury's award to him of €387,000 damages.
The judgment concerns existing defamation law and does not address the Government’s proposals for reform of the law, including to abolish juries in defamation cases, but the judges observations may inform the amendment of the law.
The observations include comments about defects, particularly the absence of time limits, with the ‘offer of amends’ procedure set out in the 2009 Defamation Act which was aimed at avoiding litigation,
The majority court concluded Capt Higgins was entitled to €175,000 general damages and €50,000 aggravated damages over three emails sent by the authority in 2013, which it admitted were defamatory.
Having applied a 10 per cent discount in light of an offer of amends from the authority, the total award came to €202,500.
In the main judgment, Mr Justice John MacMenamin said the background to the appeal arose from emails sent in 2013 by the IAA insinuating that Capt Higgins had flown a microlight aircraft unauthorised and would not get away “scot free”, despite him having acted entirely correctly.
Six years after Capt Higgins launched defamation proceedings, the IAA admitted liability and offered to make an apology and to make amends.
A High Court jury assessed general damages at €300,000 and €130,000 aggravated damages, with a discount of 10 per cent on the gross figure in view of the offer of amends.
The CoA reduced to €70,000 and €10,000 respectively the general damages and aggravated damages, but kept the 10 per cent discount, making a total award of €76,500.
The Supreme Court agreed to hear a further appeal by Capt Higgins which addressed how the offer of amends procedure should operate; what guidance a trial judge should give to a jury to assist it in determining damages in defamation cases; and the proper circumstances in which an appellate court should set aside a jury’s award.
Mr Justice MacMenamin found no legislative intention to alter the pre-existing judicial practice of deference to jury awards can be evinced from the 2009 Act. As the defamatory comments were not true, nor based on belief, they were not subject to the same constitutional protection as expressions of conviction or opinion, he added.
He said trial judges should give specific guidance to juries by reference to a range of cases.While stressing defamation cases cannot be easily categorised and this was “guidance” rather than formal guidelines, he suggested four categories or brackets.
The guidance is that very moderate defamation attracts awards between zero and €50,000; median cases between €50,000 and €120,000 and serious defamation between €125,000 and €199,000. He suggested that cases at the top of scale would be more than €200,000 but noted that the courts had very seldom awarded more than €300,000.
‘Truly exceptional’ cases
The cases of former Democratic Left leader Proinias De Rossa, whose £300,000 award was equivalent to €460,000, and of public relations consultant Monica Leech, who was awarded €1.25 million by the Supreme Court, were “truly exceptional”.
The judge concluded this case fell into the third category of serious defamation and that €175,000 was appropriate general damages. The allegations and conduct of the IAA in its defence aggravated the injury to Capt Higgins and warranted €50,000 for aggravated damages, he ruled.
In considering the discount to be applied following an offer of amends, he suggested a court take account of the “timing, content of the offer, and the conduct of the defendant”, and operate on a scale of discount from zero to a “gold standard” of 50 per cent. Any inadequacy in the offer of amends should be dealt with via the discount percentage, not aggravated damages, he said.
While concluding the jury award should be set aside, he decided against sending the case back for reassessment by another jury as both sides wanted an end to the litigation. Ms Justice Elizabeth Dunne concurred.
In separate concurring judgments, Ms Justice Marie Baker and Mr Justice Séamus Woulfe said they believed the jury award was not so disproportionate as to warrant the Supreme Court interfering with it, but would agree with the general damages proposed by Mr Justice MacMenamin as the sides wanted an end to the litigation. They agreed with the €50,000 aggravated damages proposal.
Mr Justice Woulfe said the suggestion that general damages can be located within four brackets requires “caution” and such guidance cannot be applied rigidly.
Dissenting, Mr Justice Gerard Hogan said the law has moved on from the prior position that appellate courts should be slow to interfere with jury awards in defamation, reflecting the importance of the right to free speech under the Constitution.
He concluded that appellate courts may set aside an award when it deviates by more than 25 per cent from the court’s assessment of appropriateness but should otherwise defer to the jury’s assessment as the jury had the advantage of seeing witnesses and hearing evidence.
Having reviewed defamation and personal injuries awards, he concluded €100,000 for general damages was more appropriate.
While Personal Injury Guidelines have no direct connection to defamation awards, it would be difficult to stand over the jury award of €300,000 for general damages given that a similar sum would be awarded to a double amputee, he added.
He considered the IAA’s conduct related to the effectiveness of the offer of amends procedure was “standard fare” in defamation cases and the proper approach was not to award aggravated damages, but to reduce the discount figure for the offer of amends.