Time to say goodbye: Why Ireland should remove juries from defamation cases

There are few moments in a courtroom as dramatic as when a jury foreman rises to deliver the verdict.  Years of legal argument, emotional and financial investment culminate in one climactic moment. 

You could have heard a pin drop on 17 November 2010 when a jury foreman announced the award of €10m in damages to a former Kenmare Resources director in respect of a defamatory press release issued by Kenmare. No doubt there were also sharp intakes of breath, on the other side of the courtroom, when on 28 February 2019 the Court of Appeal reduced that amount by 97.5% to €250,000. 

On 14 November 2019 a jury awarded Captain Padraig Higgins, an accomplished Aer Lingus pilot, €387,000 in respect of three defamatory emails. On 16 June the Court of Appeal upheld an appeal, reducing the award by 80% to €76,500.  

The delivery of the Court of Appeal's decision last month was much less dramatic than the Kenmare decisions. Owing to current COVID-19 restrictions, there was no one in court and the judgment was sent by email.  There were no celebrations or recriminations as it landed in my inbox without fanfare. However, in my view, it is the Higgins judgment, more than any other, which illustrates why juries should no longer have a role in defamation cases.

A unique case

Captain Higgins' case was unique. It was the first time that a jury was provided with details of damages awarded in other cases with a view to guiding the jury on the amount of damages they should award.  The jury was told about landmark awards by the Court of Appeal and Supreme Court and the reasoning for them.  They were also told about the kind of damages awarded in catastrophic personal injuries actions.  Although rightly cautioned by the judge that no two defamation cases are the same, it was acknowledged that the jury could have regard to these other awards in deciding how much to award Captain Higgins.

Unfortunately, and despite their best efforts, the jury's award of €387,000 was, to quote Judge Binchy's judgment "so unreasonable as to be disproportionate to the injury sustained."  The guidance the jury was provided on other awards - a reform intended by our Defamation Act of 2009 to prevent such disproportionate awards – clearly did not work.

Offer of amends

Captain Higgins' case also sounded the death knell for another reform introduced by our 2009 Act to make defamation cases a more level playing pitch.  The Act allows a defendant to make an 'offer of amends'. This involves an offer to pay damages and make an apology. If the offer is accepted and the parties cannot agree either the amount of damages or the terms of the apology then an application can be made to 'court' to rule on either aspect.  The main advantage for the defendant in making such an offer of amends is that it should be entitled to a discount of 10-50% on the amount of damages for doing so, together with significant costs savings if the case is resolved quickly.  If a plaintiff rejects the offer of amends, then he/she has to prove malice to win his case; a tall order. The benefit for the plaintiff is that the damage to his or her reputation is resolved quickly and effectively, without risky, costly and drawn out litigation.

The offer of amends was thus intended to provide a fast track, cost efficient mechanism for resolving defamation cases where defendants admit they defamed the plaintiff. A laudable objective. The only snag was that, when stating that the 'court' could decide the amount of damages if the parties did not agree, the Act failed to specify if 'court' meant a judge or a jury.  Most assumed it must mean a judge on the basis that the procedure would be of little appeal to a defendant if it lead to the expense and risk associated with a jury trial. Captain Higgins argued, however, that the Act would have specified that it was intended a judge would rule on damages if that was its intention and that 'court' must mean a jury. The Supreme Court agreed with Captain Higgins' interpretation.

It is doubtful whether any party will deploy the offer of amends again. Another key reform of the 2009 Act has become all but redundant.

Settlement inflation

Excessive damages awards by defamation juries have substantial direct and indirect adverse consequences.  They lead to inevitable appeals, prolonging litigation and increasing costs for all involved.  They also inflate the settlement value of defamation cases more generally.  Why would a defendant, such as a newspaper, not consider paying an excessive settlement in order to avoid the lottery of a jury award?

Jury trials are much slower than other hearings. Both sides expected Captain Higgins' case to last four days, even allowing for the slow pace of a jury trial. It took seven. A judge would have heard it in half that time. Twelve jurors had to spend almost two weeks listening to evidence and legal argument about a case concerning three emails sent to five people.  

This aspect of jury trials receives less attention but also inflates defamation settlements. Why would a defendant not contemplate settling for, say, 20% more than the case is worth if they are going to end up spending more than that 20% on excessive legal fees associated with an unnecessarily protracted hearing?

Justice delayed

Captain Higgins' case also highlighted another fundamental problem with our defamation system. Both parties agreed that the case was ready for hearing as early as 16 October 2018 when it first appeared in a list of cases to be allocated hearing dates.  However, due to the limited availability of judges and the congested court list, it was only on 17 October 2019, at the fourth time of asking, that it was actually allocated a hearing date. 

These delays were common in defamation cases pre-COVID-19 and will be exacerbated now.  While COVID-19 is impacting on most legal proceedings, the impact is greatest on cases requiring trial by jury, where it is more difficult to maintain the required social distancing. For individuals who have been defamed, the delays in vindicating their reputation must be hugely frustrating. Adjournments are not cost-neutral and may also indirectly increase the settlement value of cases.  As the costs increase, so sometimes will the defendant's inclination to rid themselves of such a frustrating process.

Access to justice

All these factors contribute to the fact that High Court defamation cases in Ireland are a uniquely and unjustly protracted and expensive business. Whether you are a plaintiff or a defendant, you need deep pockets to take or defend a High Court defamation case.  Individual plaintiffs may have to risk their life savings or even re-mortgage their home to clear their names.  Access to justice should not come with such a foreboding price tag.

Reform

The new government has identified the need for defamation reform in the Programme for Government. The last attempt at reform was well intentioned. However, in reducing the influence of the jury, rather than eliminating it, the 2009 Act did not go far enough. Minister McEntee should remove juries entirely from defamation cases. Doing so would make our defamation system fairer, quicker and more accessible.

Other perspectives

Not everyone agrees that juries should go.

Some may argue that I am relying too much on a single case. However, there is a growing body of evidence that juries award disproportionate damages in defamation cases. Furthermore, I am unaware of any Irish appeal court increasing defamation damages awarded by a jury.

Others may say that judges can also make mistakes and that juries in defamation (and criminal) cases have shown themselves adept in understanding and applying complex legal issues. I accept that. However, judges are generally better and faster at both tasks. I am unaware of any damages award by a judge which was reduced on appeal by 97.5%.

The strongest counterargument is that we have a constitutional right to our good name and that a jury of your peers is best placed to consider whether a publication is defamatory and what it really means. I can see some merit in this view. I have no doubt that it influenced the decision to include defamation cases among very few civil cases which can be heard by a jury. However, I am unaware of any evidence to suggest that defamation awards by judges in other jurisdictions, such as the UK, where juries are not used for defamation, or indeed by our own Circuit Court judges, are in any way prejudicial to plaintiffs. Furthermore, times have changed.  The right to one's good name must now be balanced against the chilling effect the current system must have on investigative journalism and, more generally, on the melting iceberg that is mainstream media.

Let judges vindicate the rights of those who have been defamed. Let the media protect all of our rights by allowing them to do their job uninhibited by the spectre of a jury trial.

For more information on this topic please contact Kenan Furlong, Partner or any member of A&L Goodbody's Litigation and Dispute Resolution team.

This article first appeared in The Currency on Friday 10 July 2020.

Date published: 10 July 2020