Page
Annual Review of Irish Law 2018, 1(1), 566-601
Annual Review of Irish Law
2018
Torts
DEFAMATION
Offer of amends
In the Annual Review of Irish Law 2016, pp.631–632, we discussed the decision of
Higgins v Irish Aviation Authority [2016] IECA 322, where the Court of Appeal,
affirming Moriarty J. ([2016] IEHC 245), held that s.23(1)(c) of the Defamation Act
2009 (the “2009 Act”) had preserved the right to jury trial to determine the amount
of damages in cases where an offer of amends has been accepted but the parties
cannot agree on the quantum of damages. Hogan J. considered that, even though
the procedure for making amends under s.22 was innovative and novel, it had not
fundamentally altered the nature of the task of assessing damages under s.23(1)(c):
“This task essentially remains the same which regularly confronts juries in
contested defamation actions. The only new element is the level of discount of
damages to be granted by reason of the timely and fulsome offer to make
amends (if such there be). This, however, is a matter on which a jury functioning
in the context of s. 23(1)(c) could readily be instructed.”
The Supreme Court affirmed: [2018] IESC 29. Dunne J. (O'Donnell, MacMenamin,
O'Malley and Finlay Geoghegan JJ. concurring) noted that the purpose of “the new
bespoke offer of amends procedure” introduced by s.23(1)(c) was to facilitate early
and speedy resolution of defamation proceedings and, if possible, to avoid the
necessity to issue such proceedings. The use and selective definition of the phrase
“the court” in other sections in the 2009 Act did “not provide clarity or assistance” to
the interpretation of that phrase as used in s.23(1)(c). Dunne J. went on to observe:
“The right to a trial by jury has long been a feature of defamation proceedings
and was expressly preserved by s. 48 of the Supreme Court of Judicature
(Ireland) Act 1877 and while the right to trial by jury has been removed in many
areas of the law where once it was the norm, one of the few areas in which it
has been retained is for the conduct of defamation proceedings.
The assessment of damages in a High Court defamation action is and always has
Annual Review of Irish Law 2018, 1(1), 566-601
Annual Review of Irish Law
2018
Torts
DEFAMATION
Offer of amends
In the Annual Review of Irish Law 2016, pp.631–632, we discussed the decision of
Higgins v Irish Aviation Authority [2016] IECA 322, where the Court of Appeal,
affirming Moriarty J. ([2016] IEHC 245), held that s.23(1)(c) of the Defamation Act
2009 (the “2009 Act”) had preserved the right to jury trial to determine the amount
of damages in cases where an offer of amends has been accepted but the parties
cannot agree on the quantum of damages. Hogan J. considered that, even though
the procedure for making amends under s.22 was innovative and novel, it had not
fundamentally altered the nature of the task of assessing damages under s.23(1)(c):
“This task essentially remains the same which regularly confronts juries in
contested defamation actions. The only new element is the level of discount of
damages to be granted by reason of the timely and fulsome offer to make
amends (if such there be). This, however, is a matter on which a jury functioning
in the context of s. 23(1)(c) could readily be instructed.”
The Supreme Court affirmed: [2018] IESC 29. Dunne J. (O'Donnell, MacMenamin,
O'Malley and Finlay Geoghegan JJ. concurring) noted that the purpose of “the new
bespoke offer of amends procedure” introduced by s.23(1)(c) was to facilitate early
and speedy resolution of defamation proceedings and, if possible, to avoid the
necessity to issue such proceedings. The use and selective definition of the phrase
“the court” in other sections in the 2009 Act did “not provide clarity or assistance” to
the interpretation of that phrase as used in s.23(1)(c). Dunne J. went on to observe:
“The right to a trial by jury has long been a feature of defamation proceedings
and was expressly preserved by s. 48 of the Supreme Court of Judicature
(Ireland) Act 1877 and while the right to trial by jury has been removed in many
areas of the law where once it was the norm, one of the few areas in which it
has been retained is for the conduct of defamation proceedings.
The assessment of damages in a High Court defamation action is and always has
