Supreme Court could assess damages in defamation appeal

Denham CJ (majority decision): Defamation - identification of person as criminal, drug dealer, tax evader and loan shark - plea of justification - supplemental judgment - determination by Court of Appeal that findings of fact by High Court should be set aside - reversal of determination by Supreme Court - further questions for determination - whether another hearing was needed on a question that the jury failed to answer - damages - whether High Court rehearing was required - failure of jury to answer question as to whether untrue words materially injured the plaintiff's reputation - jury award of €900,000 damages - whether damages were disproportionate - guidelines to juries - whether it was open to the Supreme Court to assess damages.

"The fact that the jury assessed damages shows that the jury understood and answered Question 1 with “yes” and “no” at the various sub questions, answering Question 2 by reading it and proceeding, as required, under Question 3 to assess damages. Thus, it is not a question of seeking any inference as to what the jury did or did not do. The jury followed the instructions on the issue paper and answered the questions. Consequently, it is not a situation where the Court is making any supposition as to what the jury did."

"Therefore, in all the circumstances, which include the fact that the issue was argued in the Court of Appeal, the guidance from the ECtHR, the time which has run since the publication of the defamation, the costs which have been incurred and the further costs which would be incurred on a re-trial, plus the issue that any retrial would reasonably have to be a full re-trial, with possible appeals, it would be a fair administration of justice to assess the damages in this Court."

O'Donnell J (concurring): Extensive history of defamation action - publication in 1999 - High Court hearing in 2008 - whether the failure of the jury to answer a question was wrongly decided by the Court of Appeal - level of damages - value of jury decisions - whether Supreme Court could substitute its own assessment of damages -

"Somewhere in Dante’s Inferno there are souls condemned to engage in perpetual litigation as punishment for some unspeakable sin while on earth. But it is not something which should be sought by the living, or tolerated by the courts. Litigation is anything but a costless activity in terms of time, effort, stress, attention diverted from other more productive matters, and not least money. As this case vividly illustrates, proceedings are not heard in the immediate aftermath of an event and appeals are not heard a matter of days or weeks after the trial complained of, and retrials are neither free, nor as simple as re-running a laboratory experiment."

Dunne J (concurring): Article entitled "Traveller is new drug king" - factors to be taken into account in determining damages for defamation - compensation for damages - vindication of good name - distress, hurt and humiliation - whether to remit or assess -

"In the present case, as I have already pointed out, the plaintiff is not someone who came to court with a blameless reputation. His moral character is less than perfect. He has a number of convictions. He is by his own admission a tax cheat. Nevertheless, he is not somebody who has engaged in the sort of criminality that ordinary decent people would rightly abhor, namely drug dealing and loan sharking."

"Bearing in mind these considerations it seems to me that the appropriate sum to assess by way of damages taking into account all of the factors I have mentioned would be a sum which is very substantially reduced compared to the sum awarded by the jury. In circumstances where the parties announced to this Court that agreement had been reached by the parties as to the appropriate sum for damages together with costs and in view of the application by the parties not to publish the sum assessed by the Court as the appropriate figure, I have agreed with the majority of the Court not to refer in this judgment to the amount so assessed."

MacMenamin J (partially dissenting): Consequences of failure to remit assessment of damages - Section 22 of the Defamation Act 1961 - plea of justification - role of jury - damages - whether Supreme Court could substitute award.

"To my mind, the appropriate appeal court response to the unfortunate omission which arose in this case can only be to order a complete retrial, because of the very nature of the matter omitted. These were factual issues. It is common case that it would be impossible to envisage circumstance where, for example, Question 2 could be isolated from the others and itself be separately remitted for trial. It would render the role of a jury impossible. But the logic of this point goes further again. It emphasises the integrity of the entire issue paper, which asked three questions, all of which were, logically, mutually dependent, and followed logically one from the other."

"While one can readily see the advantages in this Court substituting its own award, I think the course of action adopted begs a further question. Taken to its ultimate logic, I am apprehensive that the award by this Court is capable of being portrayed by critics of the jury system as begging the question of whether juries are truly necessary in defamation proceedings?"

McKechnie J (dissenting): Case settled shortly before delivery of Supreme Court decision - history of litigation - partial justification - Section 22 of the Defamation Act 1961 - whether omitted question on issue paper should have been answered - purpose of damages in defamation cases - to publicly demonstrate that the plaintiff had actually been defamed - assessment of damages by appellate court - recent decision of European Court of Human Rights - whether retrial would be preferable.

"As drafted, the first paragraph of my judgment read: “This case is in a mess: I do not propose adding any contribution to that. Though not without some unfortunate consequences, I believe the only course open is to order a re-trial on all issues. I would hope that such can be done more expeditiously than the timeline of the original case, and I cannot see any reason why that would not be so.” Whilst I am relieved that matters have been resolved, the fact that it took almost 18 years to do so and was arrived at only minutes before judgment was due to be delivered is added testament to the view which I have just expressed."

"It appears from their judgments that the primary motivation of the majority of the Court for substituting damages in the instant appeal, rather than having the issue tried by another jury, is essentially the long-running nature of this litigation. Undoubtedly 17 years is a long time under any circumstances and I would be as anxious as any other to bring this matter to an end as quickly as possible: however, it would ill serve all to do so where the exigencies of the circumstances simply do not facilitate such a course. Consequently, despite the obvious attraction of closure, I cannot agree that this alone is sufficiently compelling for the Court to adopt the approach which it has. No submission has been made, apart from one related to the lapse of time, which may have constitutional or conventional implications for a retrial. The normal reasons for terminating a long-running case, such as decisive memory loss, a missing witness, loss of vital documentation etc., are not present in the instant appeal. Moreover, in light of the other remaining issues – the jury’s lack of answer to Question 2 being the primary consideration – I conclude that the most apt way to proceed would be a retrial in front of a fresh jury."