Page
Dorgan and McKenna, Damages, 1st edn, 2015
Chapter 8 - Damages for Defamation
Section 1. - The Defamation Act 2009
8-01
Prior to the enactment of the Defamation Act 2009 (the “2009 Act”), there was little con-
sistency as to the level of award in defamation actions, or indeed the requirement to
prove special damages. The awards were impressive and, as some commentators have
suggested, had gone out of control. Understandably, the main focus of litigation under
this head of redress focused on defamation through the media. Damages awarded for li-
bel and slander were at odds with damages awarded in other proceedings, such as per-
sonal injury. In De Rossa v Independent Newspapers Plc,1 in 1994, the plaintiff was
awarded the sum of £300,000, and similar awards in the hundreds of thousands were
made during the course of the following decade. For instance, in 1999, the Supreme
Court in O'Brien v Mirror Group Newspapers Ltd2 overturned a decree of £250,000 on the
basis that the award of damages was excessive. The lack of consistency amongst awards
was never more apparent than in Kinsella v Kenmare Resources Plc.3 In this instance,
the jury held in favour of the plaintiff and awarded the sum of €10 million. The introduc-
tion of the 2009 Act was something of a watershed, in that it simplified the process of
initiating a claim, bringing the case to hearing and the awarding of damages.
8-02
Section 6 of the 2009 Act prescribes that a defamatory act consists of “the publication,
by any means, of a defamatory statement concerning a person to one or more than one
person (other than the first-mentioned person)”. Section 2 of the 2009 Act clarifies that
a defamatory statement is such that it injures a person’s reputation in the eyes of
reasonable members of society. Previously, common law rules confined this tort to
wrongful publication, as enunciated in Quigley v Creation Ltd, 4 where the court
described the tortious act as a false statement about a person such as would lower that
person in the eyes of right-thinking members of society or such as would hold that
person up to hatred, ridicule or contempt, or cause that person to be shunned or avoided
by right-thinking members of society. The 2009 Act has substituted the notion of “right
thinking members of society” to that of “reasonable members of society”.
8-03
The 2009 Act could be described as far-reaching from the perspective of pleadings.
Section 8 of the 2009 Act provides that the plaintiff and defendant must swear affidavits
verifying all allegations and assertions that have been outlined in detail in their
, Page
pleadings. The importance of accuracy in this regard is essential, for the 2009 Act
prescribes that any party who knowingly makes a statement which is false or misleading
in any material respect will be deemed guilty of an offence, for which, on summary
conviction, he or she shall be liable to a fine of €3,000 or up to six months’
imprisonment or both, or, on conviction on indictment, to a fine of €50,000 or
imprisonment of up to five years or both.
8-04
Section 24 of the 2009 Act provides a mechanism for an apology to issue without
admission of liability; undoubtedly, the apology mitigates the quantum of damages
ultimately awarded. The apology must state in writing that there is an offer to make
amends. Section 22 of the 2009 Act allows for the making of amends either in respect of
the entire statement or as a “qualified offer” in respect of part of the statement. The
offer can be made at any time up until the delivery of the defence. This offer, or qualified
offer, as the case may be, can be withdrawn or renewed. There is no requirement
pursuant to the 2009 Act that the offer is made as soon as reasonably practicable, as
was previously the case. However, it would appear that when evaluating damages, an
early apology is preferable. Section 23 of the 2009 Act is interesting in that it provides
that:
(c) if the parties do not agree as to the damages or costs that should be paid by the
person who made the offer, those matters shall be determined by the High Court
or, where a defamation action has already been brought, the court in which it was
brought, and the court shall for those purposes have all such powers as it would
have if it were determining damages or costs in a defamation action, and in
making a determination under this paragraph it shall take into account the
adequacy of any measures already taken to ensure compliance with the terms of
the offer by the person who made the offer.
8-05
The question of damages, and in particular the emphasis placed on parties evaluating
the level of quantum themselves outside of court with respect to the apology and offer to
make amends, is crucial, in that the parties themselves retain control of the litigation. If
the plaintiff refuses the defendant’s offer, then the defendant will have a defence to the
claim. Conversely, should the defendant refuse to negotiate, he could be subject to a
jury determination. Lord Neuberger C.J. for the Court of Appeal in Cairns v Modi5 stated
that:
, Page
“The usual procedure is to take as the starting point the level of damages which
would have been awarded without reference to the impact of the offer of amends,
and then to discount as appropriate for it. In argument attention was drawn to
the degree of artificiality of arriving at this notional starting point, when the
absence of an apology would normally be regarded as an aggravating factor in
the assessment. However the adoption of this two-stage process is well-
established, and does not appear to have given rise to any practical difficulties.” 6
8-06
It would appear that the Irish courts will endorse this two-stage test when it comes to
determining the appropriate level of damages. Under the rules at common law, a plaintiff
could only receive compensation in the form of general damages. The 2009 Act goes
beyond the previous confines of common law by way of the creation of declaratory and
correction orders. These remedies are available in certain cases.
Declaratory Orders
8-07
When a plaintiff seeks a declaratory order pursuant to s.28 of the 2009 Act, the court
will invariably make an order, so long as it is satisfied that it is just in the circumstances,
that the statement made was defamatory, that no apology has been forthcoming, and
that the intended defendant has no defence. Section 28(4) of the 2009 Act specifically
states that where a plaintiff invokes this remedy, he or she is not entitled to bring any
other proceedings in respect of the defamatory statement. Similarly, and significantly for
present purposes, the court cannot make an order for damages. The benefit of a
declaratory order is that the matter is dealt with expeditiously, costs are kept to a
minimum, and the injury to the plaintiff’s reputation is recognised and repaired at an
early juncture. In the Circuit Court case of Watters v Independent Star, 7 Judge Mathews
considered that although the plaintiff suffered a loss of reputation, he
“cannot reasonably he said to be in the same category as a convicted prisoner
who refuses to accept his guilt, continues to deny all offences and do absolutely
nothing but serve a sentence under protest of innocence with no remorse,
contrition, acceptance of wrongdoing or any intention to rehabilitate or not re-
offend. There is, therefore, in my view, in this plaintiff a residual ‘reputation’ that
is capable of being damaged and fits into a category of prisoner who is different
in degree, if not in kind, to those who, in similar circumstances, simply deny all
wrongdoing, despite their conviction”.
Dorgan and McKenna, Damages, 1st edn, 2015
Chapter 8 - Damages for Defamation
Section 1. - The Defamation Act 2009
8-01
Prior to the enactment of the Defamation Act 2009 (the “2009 Act”), there was little con-
sistency as to the level of award in defamation actions, or indeed the requirement to
prove special damages. The awards were impressive and, as some commentators have
suggested, had gone out of control. Understandably, the main focus of litigation under
this head of redress focused on defamation through the media. Damages awarded for li-
bel and slander were at odds with damages awarded in other proceedings, such as per-
sonal injury. In De Rossa v Independent Newspapers Plc,1 in 1994, the plaintiff was
awarded the sum of £300,000, and similar awards in the hundreds of thousands were
made during the course of the following decade. For instance, in 1999, the Supreme
Court in O'Brien v Mirror Group Newspapers Ltd2 overturned a decree of £250,000 on the
basis that the award of damages was excessive. The lack of consistency amongst awards
was never more apparent than in Kinsella v Kenmare Resources Plc.3 In this instance,
the jury held in favour of the plaintiff and awarded the sum of €10 million. The introduc-
tion of the 2009 Act was something of a watershed, in that it simplified the process of
initiating a claim, bringing the case to hearing and the awarding of damages.
8-02
Section 6 of the 2009 Act prescribes that a defamatory act consists of “the publication,
by any means, of a defamatory statement concerning a person to one or more than one
person (other than the first-mentioned person)”. Section 2 of the 2009 Act clarifies that
a defamatory statement is such that it injures a person’s reputation in the eyes of
reasonable members of society. Previously, common law rules confined this tort to
wrongful publication, as enunciated in Quigley v Creation Ltd, 4 where the court
described the tortious act as a false statement about a person such as would lower that
person in the eyes of right-thinking members of society or such as would hold that
person up to hatred, ridicule or contempt, or cause that person to be shunned or avoided
by right-thinking members of society. The 2009 Act has substituted the notion of “right
thinking members of society” to that of “reasonable members of society”.
8-03
The 2009 Act could be described as far-reaching from the perspective of pleadings.
Section 8 of the 2009 Act provides that the plaintiff and defendant must swear affidavits
verifying all allegations and assertions that have been outlined in detail in their
, Page
pleadings. The importance of accuracy in this regard is essential, for the 2009 Act
prescribes that any party who knowingly makes a statement which is false or misleading
in any material respect will be deemed guilty of an offence, for which, on summary
conviction, he or she shall be liable to a fine of €3,000 or up to six months’
imprisonment or both, or, on conviction on indictment, to a fine of €50,000 or
imprisonment of up to five years or both.
8-04
Section 24 of the 2009 Act provides a mechanism for an apology to issue without
admission of liability; undoubtedly, the apology mitigates the quantum of damages
ultimately awarded. The apology must state in writing that there is an offer to make
amends. Section 22 of the 2009 Act allows for the making of amends either in respect of
the entire statement or as a “qualified offer” in respect of part of the statement. The
offer can be made at any time up until the delivery of the defence. This offer, or qualified
offer, as the case may be, can be withdrawn or renewed. There is no requirement
pursuant to the 2009 Act that the offer is made as soon as reasonably practicable, as
was previously the case. However, it would appear that when evaluating damages, an
early apology is preferable. Section 23 of the 2009 Act is interesting in that it provides
that:
(c) if the parties do not agree as to the damages or costs that should be paid by the
person who made the offer, those matters shall be determined by the High Court
or, where a defamation action has already been brought, the court in which it was
brought, and the court shall for those purposes have all such powers as it would
have if it were determining damages or costs in a defamation action, and in
making a determination under this paragraph it shall take into account the
adequacy of any measures already taken to ensure compliance with the terms of
the offer by the person who made the offer.
8-05
The question of damages, and in particular the emphasis placed on parties evaluating
the level of quantum themselves outside of court with respect to the apology and offer to
make amends, is crucial, in that the parties themselves retain control of the litigation. If
the plaintiff refuses the defendant’s offer, then the defendant will have a defence to the
claim. Conversely, should the defendant refuse to negotiate, he could be subject to a
jury determination. Lord Neuberger C.J. for the Court of Appeal in Cairns v Modi5 stated
that:
, Page
“The usual procedure is to take as the starting point the level of damages which
would have been awarded without reference to the impact of the offer of amends,
and then to discount as appropriate for it. In argument attention was drawn to
the degree of artificiality of arriving at this notional starting point, when the
absence of an apology would normally be regarded as an aggravating factor in
the assessment. However the adoption of this two-stage process is well-
established, and does not appear to have given rise to any practical difficulties.” 6
8-06
It would appear that the Irish courts will endorse this two-stage test when it comes to
determining the appropriate level of damages. Under the rules at common law, a plaintiff
could only receive compensation in the form of general damages. The 2009 Act goes
beyond the previous confines of common law by way of the creation of declaratory and
correction orders. These remedies are available in certain cases.
Declaratory Orders
8-07
When a plaintiff seeks a declaratory order pursuant to s.28 of the 2009 Act, the court
will invariably make an order, so long as it is satisfied that it is just in the circumstances,
that the statement made was defamatory, that no apology has been forthcoming, and
that the intended defendant has no defence. Section 28(4) of the 2009 Act specifically
states that where a plaintiff invokes this remedy, he or she is not entitled to bring any
other proceedings in respect of the defamatory statement. Similarly, and significantly for
present purposes, the court cannot make an order for damages. The benefit of a
declaratory order is that the matter is dealt with expeditiously, costs are kept to a
minimum, and the injury to the plaintiff’s reputation is recognised and repaired at an
early juncture. In the Circuit Court case of Watters v Independent Star, 7 Judge Mathews
considered that although the plaintiff suffered a loss of reputation, he
“cannot reasonably he said to be in the same category as a convicted prisoner
who refuses to accept his guilt, continues to deny all offences and do absolutely
nothing but serve a sentence under protest of innocence with no remorse,
contrition, acceptance of wrongdoing or any intention to rehabilitate or not re-
offend. There is, therefore, in my view, in this plaintiff a residual ‘reputation’ that
is capable of being damaged and fits into a category of prisoner who is different
in degree, if not in kind, to those who, in similar circumstances, simply deny all
wrongdoing, despite their conviction”.
