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28 July 2009
The recent High Court libel action taken by communications consultant Monica Leech against Independent Newspapers (Ireland) Limited related to a series of eight newspaper articles published in the Evening Herald in 2004. The plaintiff claimed that Independent Newspapers defamed her by alleging that she won public contracts as a public relations consultant because of an extra-marital affair with the then Environment Minister Martin Cullen. At the time, the Evening Herald was reporting on the plaintiff's work as special advisor to Cullen.
The defendant denied libel and argued that the articles were true "in substance and in fact in their natural and ordinary meanings and not those meanings contended by the plaintiff". It also claimed during the seven-day trial that the articles raised public interest issues concerning the awarding of such contracts.
The jury of seven women and five men took five hours and 20 minutes to reach a majority decision that the Evening Herald articles meant that the plaintiff was having an affair with Cullen, and took almost a further hour to assess damages at €1,872,000.
Independent Newspapers subsequently applied for a stay of the award pending an appeal to the Supreme Court. It argued that the decision by the jury was disproportionate in terms of other libel awards and "an affront to justice", since even people who were seriously injured would not receive such damages. Mr Justice DeValera directed immediate payment of €750,000 to the plaintiff. He also awarded legal costs in favour of the plaintiff, but postponed payment of such costs, subject to €100,000 being paid out pending the appeal. The judge said that he believed, on the balance of probability, that the Supreme Court would rule that Independent Newspapers would be liable for the award.
The Supreme Court has ruled that where there is an objective flaw in a jury's decision, it can substitute its own view of the appropriate level of damages to be awarded, rather than remit the matter to the High Court for a full hearing. However, there are no reported decisions in which this has been done.
If an award is deemed excessive by the Supreme Court, it is more likely that a retrial will be ordered. This occurred in Denis O'Brien v Mirror Group Newspapers Limited, where the defendant appealed the original jury award of I£250,000 to the Supreme Court. The High Court jury had found the newspaper's allegation of bribery against the plaintiff to be defamatory. The Supreme Court held that the award was disproportionately high for a libel that could not be regarded as "coming within the grossest and most serious libels which have come before the courts". However, at the retrial a new jury awarded the plaintiff €750,000. The case was subsequently settled.
Reform of Defamation Law
The level of damages awarded to the plaintiff in this action highlights what many see as the need for urgent reform of defamation law and specifically the anomalous system of assessing damages.
Under the existing defamation regime in Ireland, the issue of quantifying damages to a libel litigant's reputation (in monetary terms) is left to a High Court jury alone. A High Court jury is effectively left to its own devices to select what it considers to be an appropriate figure. Such a process was described by Lord Bingham, in a defamation action involving the singer Elton John, as leaving jurors "in the position of sheep loose on an unfenced common with no shepherd".
In Ireland, judges are allowed to direct juries only in general terms with regard to the assessment of an appropriate level of damages in defamation actions. They may only advise a jury that:
"damages must be confined to such sum of money as would fairly and reasonably compensate the plaintiff for his injured feelings, and for any diminution in his standing among right-thinking people as a result of the words complained of."
The European Court of Human Rights has already stated that a jury's unlimited discretion with regards to the assessment of damages in defamation actions fails to protect adequately freedom of expression under Article 10 of the European Convention on Human Rights. In the United Kingdom, judges are allowed to offer more specific guidelines to a jury as to the level of damages which might be appropriate in a particular case. For example, a judge may not refer the jury to previous jury awards in libel actions, but may refer to awards made by the Court of Appeal which have been substituted for jury awards. UK juries may also be referred to awards made in personal injuries actions.
The unfettered discretion of juries in Ireland led to another much-criticized jury award in February 2008. In McDonagh v Sunday Newspapers Limited, the Sunday World had described the plaintiff as a "traveller drug king" and a "loan shark". It was accepted that the plaintiff was a tax evader and a criminal. However, the plaintiff successfully argued that he was not a drug dealer or a loan shark and the jury awarded him €900,000, plus costs, for the damage to his reputation. Until the €1.87 million awarded to Monica Leech, this was the highest award handed down by a jury in Ireland.
In McDonagh DeValera ordered that €90,000 of the €900,000 awarded should be paid out, pending the outcome of the appeal which has yet to be heard.
The long-awaited Defamation Bill (introduced in 2006) was signed into law by the president of Ireland on July 23 2009. It is understood that it will take effect in October 2009. The Defamation Act 2009 will replace the existing Defamation Act 1961 and will allow a judge sitting with a jury in a libel action to give directions to that jury in relation to "the matter of damages". It is hoped that this legislation will finally provide a shepherd to the wandering sheep sitting on Irish juries.
For further information on this topic please contact Hugh Hannigan at Matheson Ormsby Prentice by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (email@example.com).
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