Europe encourages shift to lower damages in Irish defamation cases

By Charles Waterhouse & Darryl Broderick
20 June, 2017

The seven Judge European Court of Human Rights (ECHR) has upheld a challange taken by Independent Newspapers relating to the Supreme Court decision to grant €1,250,000 in damages to Monica Leech.

In the original High Court proceedings a Jury awarded Ms Leech €1,872,000 damages following a string of articles published by the Evening Herald between 30 November, 2004 and 17 December, 2004. The newspaper appealed the quantum of damages to the Supreme Court. On appeal the Supreme Court found that the Jury award was excessive and a majority of 2:1 reduced the award in damages to €1,250,000 (the dissenting Judge assessed the damages at €1,000,000). The Supreme Court used its discretion under the Defamation Act 2009 to substitute its’ award for the Jury award.

ECHR Submissions
Unsurprisingly, the newspaper brought a case before the European Court of Human Rights and submitted that the damages were a disproportionate interference of its’ right to freedom of expression under Article 10 of the European Convention on Human Rights. It argued that in a country the size of Ireland, with relatively small press companies, awards of the scale in this case could threaten the financial existence of such companies, to the detriment of freedom of speech and vibrancy of democracy. It further submitted that the Supreme Court did not attempt to tie the level of damages to any actual loss suffered by Ms Leech. It compared Irish law to the law of England and Wales where the ceiling in more serious cases of defamation is in or around GBP275,000. It further submitted the level of general damages was much higher than would be granted in Ireland for personal injuries which was in and around €450,000 for the most serious injuries.

The State argued that the safeguards had been correctly applied and that the Trial Judge had given clear instructions to the Jury about damages. It argued the Supreme Court had engaged in a robust review of the Jury’s award and set it aside as disproportionate, replacing it with an amount that it regarded as proportionate to the injuries suffered by Ms Leech. It submitted that the damages awarded must be assessed in the context of all the facts and that the “reporting was salacious and sensationalist, accompanied by photographs”. It further submitted that the newspaper exasperated matters by defending the case and it offered no apology until after the trial and that Article 10 had to be balanced against Ms Leech’s right under Article 8 to respect for private and family life.

ECHR Assessment
The Court referred to its Judgment in Independent News and Media and Independent Newspapers Ireland Limited v Ireland (no. 55120/00, 2005) when deciding whether the interference could be regarded as “necessary in a democratic society”. In the first instance the Court found that the Trial Judge’s charge to the Jury was formulated in accordance with the Barrett Rules (Barrett v Independent Newspapers Limited). It found that while it cannot be said that the Jury’s discretion was without limit, the Court does consider that the direction given in this case was such as to reliably guide a Jury towards an assessment of damages bearing a reasonable relationship of proportionality to the injuries sustained by Ms Leech to her reputation and right to respect for her private and family life.

In relation to the role of the Supreme Court it found that as it set aside the award of the High Court, the appellate safeguard was effective. The Court accepted the newspaper’s argument that the Supreme Court award had been influenced by the Jury’s assessment of damages and that had the High Court award been lower than €1,250,000, the Supreme Court would not have awarded that sum. It found however that as the Supreme Court referred at one point to convention case law and balancing of rights it could not be argued that the award was entirely unreasoned. Notwithstanding this, it found that in the whole there was not sufficient reasoning from the Supreme Court in its finding of the damages award of €1,250,000. It stated that the Supreme Court needed to give further clarification as to why, in particular, the highest ever award was required in a case which the Supreme Court did not categorise as “one of the greatest and most serious libels to come before the courts”.

The Court further noted that such an award by the Supreme Court had the capacity to act as a benchmark for future defamation awards and out-of-court settlements. In recognising the important role of the Jury in such proceedings the Court concluded that there had been a violation of Article 10 of the convention.

Comments
This decision will be one that is welcomed by many newspaper and media outlets both here in Ireland and abroad. While on the one hand the Judgment reaffirms the importance of Jury trials, it brings some much needed reality to the appropriateness of certain defamation awards and will hopefully go some way to controlling the level of awards granted. This Judgment comes at a useful time when there is a review currently underway of the Defamation Act 2009 by the Department of Justice. It would be hoped in due course that this jurisdiction may take some guidance from our counterparts in England and Wales by putting a cap on damages in defamation proceedings.

For more information on the content of this Insight contact:
Darryl Broderick, Partner, darryl.broderick@rdj.ie, +353 21 4802767,
Charles Waterhouse, Solicitor, charles.waterhouse@rdj.ie, +353 21 4802705