The Sunday Business Post August 30, 2015 Media & Marketing 25

How much is too much?

the amount of damages to award. One possible way of resolving Comment This often led to bizarre results, the issue is to remove the jury from exemplified by one case in which the assessment of damages process Down the years, the willingness tycoon Denis O’Brien was awarded entirely. In a criminal trial, the func- of juries to award large sums to €250,000 against the Irish Mirror by tion of the jury is limited to deciding a High Court jury, only to have the whether or not the accused is guilty libel plaintiffs has had dreadful award overturned on appeal by the of the offence charged, but it is the Supreme Court on the grounds that trial judge who decides on the ap- implications for freedom of speech it was disproportionately high. propriate sentence to be imposed. The case was then remitted back A similar approach could be tak- in Ireland, writes James McDermott for reconsideration by a second en in defamation cases, so that the High Court jury, who could not be issue of whether or not the plaintiff given guidelines on damages, or has been libelled by the defendant n Richard II, Shakespeare press release issued by his employer even be told that the Supreme Court is determined by the jury. The quan- suggests that “the purest which wrongly insinuated that he had set aside an earlier award of tum of damages could be assessed treasure mortal times afford had made inappropriate advances to €250,000 for being disproportion- by the presiding trial judge, whose is spotless reputation”, but a female colleague during a naked ately high. The second jury decided legal expertise would enable him to placing a precise monetary sleepwalking incident. to award O’Brien €750,000. produce a detailed written judgment value on this particular No one is disputing that each of Nowadays, in cases covered by outlining his reasons for making a treasure is something which those cases involved very serious the Defamation Act 2009, juries can particular award. This is far prefer- has perplexed our courts for examples of defamation fully de- be given some guidance by the trial able to a jury simply announcing a decades. Now it is Strasbourg’s turn serving of damages, but that does judge as to which factors are rele- figure it deems appropriate follow- Ito grapple with the problem. not mean that the size of the awards vant when calculating the quantum ing secret deliberations. The European Court of Human should be free from scrutiny. of damages. An even more radical reform Rights is being asked to rule on the It is not just in this country that However, such directions are would be to remove the jury from largely untrammeled discretion this issue has created difficulties. In limited, and the courts are still very the equation altogether and have enjoyed by Irish juries to award 1989, a London jury awarded Sonia reluctant to entertain comparisons High Court libel cases heard by a enormous sums in damages. The Sutcliffe, the wife of the Yorkshire with personal injuries actions. To judge sitting alone, as currently hap- case itself concerns an award of Ripper, the then astronomical sum date, the Act does not seem to have pens in the Circuit Court. €1.25 million made by the Irish of £600,000 against Private Eye, impacted on the chilling effect that After all, High Court judges make Supreme Court to communications prompting its editor Ian Hislop to large awards can have on the me- decisions in areas such as immigra- consultant Monica Leech, over a se- famously declare: “If this is justice, dia’s freedom of expression. tion, employment and family law ries of articles in the Evening Herald then I’m a banana.” Subsequent which are of crucial importance to that falsely suggested that she was awards confirmed that Mr Hislop the parties concerned without the having an extramarital affair with a was indeed an edible yellow tropical assistance of a jury. government minister. fruit. Other than historical anomaly, it At the original trial, the High The generosity of these awards is hard to see why libel cases still re- Court jury awarded Leech €1.87 is evident when one studies the quire the input of a jury, particularly million, a sum that the Supreme Injuries Board ‘Book of Quantum’, when one recalls that the Courts Court found to be excessive. Such which suggests that a person who Act 1998 removed juries from the large awards are far from uncom- has lost both legs in an accident can majority of tort actions precisely mon in Irish libel cases. expect to receive compensation of One possible because of the indefensibility of the Judgment is awaited from the between €130,000 and €180,000. high awards being made by them. Court of Appeal in relation to an In addition, the courts have indi- way of resolving For as long as the possibility of award of €900,000 made by a cated that the ceiling for damages excessive jury awards remains, then High Court jury against the Sun- for quadriplegia and paraplegia is the issue is to any defendant who fights a big def- day World, for falsely claiming that approximately €450,000. And, of remove the amation case and loses faces what Martin McDonagh was a drug dealer course, an award of damages in Edward II concisely summarised as and a loan shark. The jury made the a personal injuries action cannot jury from the “woe, destruction, ruin and decay”. times a year. on the receiving end, the political estab- award despite being satisfied that restore lost limbs – in contrast to Unless and until Strasbourg inter- Sebastian Hamilton, group editor of the lishment may wake up to the fact that this the tabloid had successfully proved a libel award, which often is very assessment venes, this will continue to have Irish Mail, agreed with Kierans that the is not a good thing,” he said. that McDonagh was both a tax effective in restoring a person’s good serious implications for freedom of libel laws were “outrageously repressive” “Even Woodward and Bernstein got one evader and a criminal. name and reputation. of damages speech in this country. and were used by the rich and powerful story wrong. In Ireland, that one mistake And then there was the €10 Traditionally, juries were not giv- to stymie investigative reporting. would have shut down the Watergate in- million in damages awarded to en any guidance by the presiding process entirely James McDermott is a barrister and “Now that members of Dáil Éireann are vestigation.” businessman Donal Kinsella, over a trial judge over how to determine lecturer in law at UCD

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