The Supreme Court has dismissed two appeals over who should assess damages when a defamation defendant’s offer to make amends has been accepted but the parties cannot agree the amount. It held that the plaintiff is entitled to have damages assessed by a jury under section 23(1)(c) of the Defamation Act 2009.
The judgment, delivered by Ms Justice Dunne on 10 July 2018, concerned appeals in proceedings brought by Padraig Higgins and Paul White. The Irish Aviation Authority and Sunday Newspapers Limited were the respective defendants and appellants. The appeals were heard together because they raised the same question of statutory interpretation.
Higgins sought damages over three emails sent by an Irish Aviation Authority employee to the UK Civil Aviation Authority and other Authority employees after the UK authority contacted the Irish body about an incident involving Higgins while flying a microlight aircraft in the UK. The Authority offered to make amends in May 2015, including a correction and apology and payment of compensation or damages and costs as agreed or determined. Higgins accepted the offer, but the parties could not agree its terms.
White’s claim arose from a Sunday World article and photograph published on 26 May 2013. The judgment records that the photograph wrongly showed White and that he claimed the article was grossly defamatory. The newspaper offered to make amends in May 2013, including a correction, apology and payment to be agreed or determined. White accepted, but the parties did not agree the terms.
In both cases, the High Court ruled that damages could be assessed by a judge sitting with a jury. The Court of Appeal dismissed the defendants’ appeals, and they then appealed to the Supreme Court. The issue before the Supreme Court was the mode of assessing damages under the accepted offers; it was not a determination of the underlying claims or the amount of damages payable.
Justice Dunne said the Act’s reference to “the court” in section 23(1)(c) did not clearly exclude a jury. Although the offer-of-amends procedure was intended to support early and economical resolution of defamation disputes, the judgment said assessing damages in a High Court defamation action had traditionally been a jury function. The legislation contained no clear words removing that role in this procedure.
The Court held that the plaintiffs were entitled to jury assessment of damages, subject to directions on the discount to reflect the offers of amends. It dismissed both appeals. The judgment did not fix damages or resolve the parties’ outstanding disagreement about their amount or terms.