'If that's justice then I'm a banana," announced Ian Hislop in 1989, moments after a High Court jury in London had awarded Sonia Sutcliffe, the wife of the Yorkshire Ripper, an astronomical £600,000 (€665,000)against Hislop's 'Private Eye' magazine. In recent years, huge awards of damages by juries have also become a common feature of Irish libel law, leaving many defendants looking for space in Hislop's fruit bowl.
The highest award was the €10m in damages awarded by a jury in 2010 to businessman Donal Kinsella over a press release issued by his employer that wrongly insinuated that he had made inappropriate advances to a female colleague during a naked sleepwalking incident whilst on a business trip to Africa.
Then there was the award of €1.87m made by a High Court jury in 2009 to communications consultant Monica Leech over a series of articles in the 'Evening Herald' that falsely suggested that she was having an extramarital affair with a government minister. This award was subsequently reduced on appeal by the Supreme Court to €1.25m, but has led to the newspaper group challenging Ireland's defamation laws before the European Court of Human Rights, claiming that they have a serious chilling effect on freedom of expression.
No one is disputing that both of those cases involved very serious examples of defamation fully deserving of significant damages, but that does not mean that the size of the awards should be free from scrutiny.
The very high level of these awards is evident when one studies the revised 'Book of Quantum' that was issued by the Injuries Board last month, which indicates that damages of up to €138,000 are appropriate for the total loss of sight in one eye and that the upper range of general damages for quadriplegia and paraplegia is approximately €450,000.
And, of course, an award of damages in a personal injuries action cannot restore a person's sight or general health, in contrast to a libel award which is often a very effective way of vindicating a person's good name and reputation.
One possible explanation for these huge awards is the fact that, historically, the trial judge was not allowed to give the jury any assistance as to what award of damages might be appropriate.
This led to some very convoluted outcomes. For example, businessman Denis O'Brien was awarded €250,000 against the 'Irish Mirror' by a High Court jury, only to have the award overturned on appeal by the Supreme Court for being disproportionately high.
The case was then sent back for reconsideration by a second High Court jury, which could not be given guidelines on damages or even be told that the Supreme Court had set aside an earlier award of €250,000 for being disproportionately high. The second jury decided to award O'Brien €750,000.
Following the introduction of the Defamation Act 2009, judges are now allowed to give the jury some guidance on the various factors to consider when awarding damages. However, jury awards in Ireland still remain high by international standards.
For example, in England damages are effectively capped at £275,000 (€304,000), with the majority of awards being much lower, as Albert Reynolds discovered in 1996 when he was awarded one penny in damages following his successful libel action against the 'Sunday Times'.
The review of defamation law that was announced by Justice Minister Frances Fitzgerald earlier this week is clearly welcome.
One possible reform is to remove the jury from the issue of damages completely. After all, in a criminal trial the role of the jury is limited to establishing the guilt or innocence of an accused person. If a guilty verdict is returned, it is the presiding judge who determines what is the proper sentence to hand down.
A similar division of responsibilities in libel actions could lead to the jury determining if a person has been defamed, with the judge then deciding what level of damages is appropriate.
The judge would be expected to write a judgment showing how they came to this figure, which is much more transparent than a jury simply announcing an amount following secret deliberations.
Even more radical would be the removal of juries entirely from High Court libel actions. After all, the vast majority of civil (ie non-criminal) cases are decided without any jury involvement by a trial judge sitting alone. If such a judge can be trusted on their own to resolve often important disputes in areas such as family and asylum law, then it is hard to see why they still require the assistance of a jury in a libel action.
Identifying the correct balance between competing Constitutional values, such as a person's right to a good name and a media outlet's freedom of expression, is never easy. In 'Richard II' Shakespeare suggests that "the purest treasure mortal times afford is spotless reputation". In the absence of further legislative reform, the question of how you place a monetary value on this particular treasure may well remain unanswered for years to come.
Irish Independent
No comments:
Post a Comment