Defamation Act 2009 jury trial right for damages after accepted offer of amends upheld on appeal.

THE COURT OF APPEAL

Neutral Citation Number: [2016] IECA 322

Appeal No. 2016 242

Peart J.

Hogan J.

Hedigan J.

BETWEEN/

PADRAIG HIGGINS

PLAINTIFF / RESPONDENT

AND

THE IRISH AVIATION AUTHORITY

DEFENDANT / APPELLANT

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 4th day of November 2016

1. The Defamation Act 2009 (“the 2009 Act”) introduced many new, worthwhile and long overdue reforms of our law of defamation.

The 2009 Act has furthermore re-stated in codified form many aspects of defamation law and practice that heretofore rested simply

on case-law and judicial decision. In many of these respects the 2009 Act has helped to provide useful guidance in clarifying various

aspects of the law.

2. The present appeal has, however, presented an important issue in respect of which the 2009 Act might well have been clearer.

The question is this: where the defendant in a defamation action has made an offer of amends pursuant to s. 22 of the 2009 Act and

this offer has been accepted, is the plaintiff nonetheless entitled to have his claim for damages pursuant to s. 23(1)(c) of the 2009

Act determined by a jury where the parties cannot otherwise agree on the appropriate figure?

3. The present claim for defamation arises from three emails sent by a member of the Irish Aviation Authority in June and July 2003.

The plaintiff’s claim is entirely based on the contents of these three emails.

4. The plaintiff issued a plenary summons in April 2014 and a statement of claim was delivered in July 2014. On 25th May 2015 the

Authority made an unqualified offer to make amends in accordance with s. 22 of the 2009 Act. This offer was accepted by the

plaintiff by letter dated 22nd June 2015.

5. As the parties were, however, unable to agree on the terms of any such settlement and, specifically, the amount of damages

payable, the plaintiff bought a motion for directions seeking to have a judge and jury determine the issue of damages in accordance

with s. 23(1)(c) of the 2009 Act. The defendant maintained that, in the particular context of an offer of amends made pursuant to s.

22, the question of damages should be determined by a judge sitting alone.

6. In a reserved judgment delivered on 10th May 2016, Moriarty J. determined that the plaintiff was entitled to the quantum of

damages determined by a jury: see Higgins v. Irish Aviation Authority [2016] IEHC 245. The Authority has now appealed to this Court

against that determination.

7. The issue thus presented is at heart one of statutory interpretation – and, specifically, the meaning of the word “Court” as it

appears in s. 23(1)(c) of the 2009 Act – and it will be necessary presently to examine the provisions of s. 22 and s. 23 of the 2009

Act in more detail.

The judgment of the High Court

8. In his judgment in the High Court Moriarty J. relied heavily on a recent decision of this Court in Lennon v. Health Service Executive

[2015] IECA 92, [2015] 1 I.R. 92 in which, in a judgment delivered by me, the Court held that the common law right to opt for jury

trial in defamation cases had been expressly preserved by s. 48 of the Supreme Court of Judicature (Ireland) Act 1877. The Court

further noted that, so far as the High Court was concerned, this right had never been abrogated by the Oireachtas and it rejected

the idea that the High Court had a discretionary jurisdiction to create exceptions to that right for case management or similar

reasons.

9. It was against this background that Moriarty J. concluded that had the Oireachtas intended to dilute the right to jury trial in a case

such as this it would have done so in clear language and not just simply obliquely:-

“…. it is clear in light of s. 14(3) [of the 2009 Act] that the Oireachtas assumed that all defamation actions heard in the

High Court would be tried by a jury. That is the starting point for any consideration of this issue. It seems to me therefore

that if the Oireachtas had intended to remove or dilute the right to jury trial ins. 23, it would have done so expressly.

Instead, while the 2009 Act is closely modelled on the United Kingdom Defamation Act 1996, which expressly provides in

s. 3(10) that the offer to make amends procedure is to be operated in the absence of a jury, no equivalent provision was

included in the 2009 Act; it simply states that matters such as damages "shall be determined by the High Court." This, it

seems to me, confirms that the legislature did not intend to remove the right to jury trial in the context of s. 23. The

court must assume that the framing of the sub-section as enacted was purposeful. Further, the rarely invoked but still

operative rule of construction "inclusio unius est exclusio alterius" appears in point.

Accordingly, in light of the judgment of the Court of Appeal in Lennon, and in the absence of an express intention on the

part of the legislature to abrogate the right to jury trial in s. 23(1)(c), I am satisfied that the plaintiff is entitled pursuant

to that section to have his damages assessed by a jury, rather than by a judge sitting alone, should he wish to do so.”

10. The defendants have accordingly appealed to this Court against that decision.

No general definition of the word “court” is contained in the 2009 Act

11. The first thing to note is that the 2009 Act contains no general definition of the word “court”. Different meanings are ascribed to

this word by the 2009 Act depending on the particular statutory context. Thus, for example, while s. 13(1) deals with appeals from “a

decision of the High Court”, s. 13(2) provides that this term includes “a judgment entered pursuant to a verdict of the jury.”

12. Section 14 allows the courts to give rulings as to the meaning of certain words, s. 14(3) provides that any such application “shall

be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.”

13. Section 26 deals with the defence of fair and reasonable publication on a matter of public interest. Section 26(4) provides,

however, that in this section, “court” is defined as meaning:

“…in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.”

14. Section 31 and s. 32 deal with the award of damages and aggravated damages respectively. Both s. 31(8) and s. 32(3) provides

that the “court” means the jury in the case of High Court defamation actions where the High Court is sitting with a jury.

15. The absence of any uniform definition of the terms “court” or “High Court” and the fact that these words are used by the 2009

Act in different senses in different contexts means that the determination of the meaning to be ascribed to these words as they are

used in s. 23 will depend on the particular context and sense in which these words have been deployed.

Section 22 and section 23: offers of amends

16. Although s.17 of the Defamation Act 1961 provided for an offer of apology to be given as evidence in mitigation of damages and

s. 21 of that Act also provided for a defence of unintentional defamation, ss. 22 and 23 of the 2009 Act contain a far more elaborate

procedure allowing for offers of amends. In essence, s. 22 allows the defendant to make an offer of amends in writing and s. 22(5)(c)

defines such an offer as including an offer:

“.. to pay to the person such sum in compensation or damages (if any) and such costs, as may be agreed by them or as

may be determined to be payable…”

17. Section 23(1) then prescribes the procedure which is to be followed in the event that the offer to make amends under s. 22 is

accepted. This sub-section provides:-

“(1) If an offer to make amends under section 22 is accepted the following provisions shall apply:-

(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure

compliance by him or her with the terms of the offer, the High Court or, where a defamation action has already

been brought, the court in which it was brought may, upon the application of the person to whom the offer was

made, direct the party who made the offer to take those measures;

(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a

defamation action has already been brought, the court in which it was brought, make a correction and apology by

means of a statement before the court in such terms as may be approved by the court and give an undertaking as

to the manner of their publication;

(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer,

those matters shall be determined by the High Court or, where a defamation action has already been brought, the

court in which it was brought, and the court shall for those purposes have all such powers as it would have if it

were determining damages or costs in a defamation action, and in making a determination under this paragraph it

shall take into account the adequacy of any measures already taken to ensure compliance with the terms of the

offer by the person who made the offer;

(d) no defamation action shall be brought or, if already brought, proceeded with against another person in respect

of the statement to which the offer to make amends applies unless the court considers that in all the circumstances

of the case it is just and proper to so do.”

Whether the reference to the High Court in s. 23(1)(c) of the 2009 Act can include a jury

18. The question, however, of whether s. 23(1)(c) embraces a jury determination of the amount of damages payable following an

offer of amends has never previously been determined. In the one case to date where the amount of damages pursuant to s. 23(1)(c)

fell to be determined, Christie v. TV3 Television Network Ltd. [2015] IEHC 694, O’Malley J. sat without a jury and her entitlement to

do so was apparently not questioned. The matter is accordingly res integra so far as this court is concerned.

19. The starting point, however, is that, as the decision in Lennon makes clear, prior to the enactment of the 2009 Act a plaintiff had

a complete statutory entitlement to have his claim for damages determined by a jury. This was so even where liability was conceded

by the defendant and the issue was simply one of an assessment of damages only. In the light of the presumption against unclear

changes in the law – a principle of statutory interpretation recently re-affirmed by the Supreme Court in Bederev v. Ireland [2016]

IESC 34, [2016] 2 I.L.R.M. 340, 360 - 361 – the issue then becomes one of examining whether this pre-existing statutory right has

been displaced - either expressly or by necessary implication - by the language of the 2009 Act.

20. Three principal arguments have been advanced to suggest that this pre-existing right has been either expressly or impliedly

negatived by the language and structure of the 2009 Act in general and by s. 23 in particular. Counsel for the defendant, Mr. Quinn

S.C., submitted that the reference in s. 23(1)(c) must be to a judge sitting alone. He pointed to the fact that the rest of the section

assumed that the reference to the High Court in the section referred to the judge alone. Thus, for example, s. 23(1)(c) also embraced

the determination of questions of costs by the “High Court”. But as the question of costs was a matter which was exclusively within

the provenance of the trial judge, it was submitted that this provided strong textual support for the argument that the Oireachtas

intended that both the determination of damages and costs under s. 23(1)(c) would be done by a judge alone.

21. Mr. Quinn S.C. also submitted that the offer of amends procedure introduced by ss. 22 and 23 was an entirely novel statutory

procedure which was designed to encourage the swift resolution of defamation claims and to minimise costs where the defendant

recognises a liability to the plaintiff and who wishes accordingly to make reparations. He contended that the Oireachtas never

intended that the more complex superstructure of a defamation hearing associated with a jury trial should have to be deployed in a

case of this nature. It was finally submitted that given that the provisions of s. 23(1)(c) were ambiguous, it was legitimate to have

recourse to the provisions of s. 5 of the Interpretation Act 2005 (“the 2005 Act”).

22. Counsel for the plaintiff, Mr. Doyle S.C., submitted in contrast, however, that in the context of s. 23(1)(c), the reference to “the

High Court” and “the court” means the jury, if the High Court is sitting with a jury. At the heart of his argument was that the

contention that the assessment of damages by a jury – even in the context of an apology – was integral to a system of trial by jury

in defamation cases. By analogy, therefore, with the reasoning of this Court in Lennon, it was submitted that if the Oireachtas had

intended to exclude the jury from the determination of this question, clear words would have been required.

23. The issue presented is a difficult and troubling one, with no completely satisfactory or clear-cut answer. This is at least part of

the reason why I have concluded that, on balance, the right to jury trial in respect of the s. 23(1)(c) damages issue has been

preserved. I have arrived at that conclusion for the following reasons.

24. First, it is true that the offer of amends procedure provided for in s. 22 of the 2009 Act is new. I further agree that this new

procedure is designed to encourage the parties to settle their disputes quickly and in a cost effective manner where the defendant is

prepared to admit liability and to acknowledge that the plaintiff has been wronged. It is also appropriate to note that, as O’Malley J.

explained in Christie, the defendant who makes the appropriate offer of amends is entitled to a substantial discount on the level of

damages which might have been awarded had the matter gone to full trial in a contested case. In Christie – which was a mistaken

identity case with serious implications for the plaintiff solicitor – O’Malley J. held that the offer of amends was not quite as

comprehensive and fulsome as it might have been and that this was a factor which tended to reduce the level of discount which

might otherwise have applied to the benefit of the defendant. It is thus possible to envisage other cases where the level of discount

might have been greater had the offer of amends been prompt, enthusiastic, fulsome and comprehensive.

25. The real point, however, to emerge from Christie is that the other factors which influenced the level of the damages in respect of

the s. 23(1)(c) award are to all intents and purposes the same as if the figure for damages were to have been determined by a jury in

the conventional way following a hearing in which liability had been disputed. Indeed, O’Malley J. expressly stated that the factors

enumerated by s. 31(4) which a jury was required to consider in assessing damages at a contested hearing also applied in the case of

any assessment of damages under s. 23(1)(c). These factors included the nature and gravity of the publication; the extent of the

publication; the extent on the reputation of the plaintiff and the making of any offer of amends.

26. All of this suggests that even if the procedure for making amends under s.22 is innovative and novel, it does not fundamentally

alter the nature of the task of assessing damages under s. 23(1)(c). This task essentially remains the same which regularly confronts

juries in contested defamation actions. The only new element is the level of discount of damages to be granted by reason of the

timely and fulsome offer to make amends (if such there be). This, however, is a matter on which a jury functioning in the context of

s. 23(1)(c) could readily be instructed.

27. One may thus conclude that the essential novelty of the s. 22 and s. 23 offer of amends procedure does not fundamentally alter

the task confronting a jury called upon to assess damages in such cases. In other words, this is not a task which, in the nature of

things, could only properly be performed by a judge. Quite the contrary, since s. 23(1)(c) engages a staple and traditional function of

a jury in defamation cases (namely, the award of damages), it cannot be said that either the existence of this new procedure or,

more specifically, the function which the Court is called upon to perform (namely, to award damages) implicitly displaces the Lennon

presumption that a plaintiff is entitled to a jury trial.

28. The other argument strongly pressed by Mr. Quinn S.C. is that the context in which the relevant words (“….those matters shall be

determined by the High Court…”) appear in s. 23(1)(c) is such that this could only refer to a judge sitting alone, since it is clear that

the reference to “those matters” is to both costs and damages. As the question of costs was, of course, always a matter for the

judge alone, this – it was argued – led inevitably to the conclusion that the reference to the High Court in the sub-section necessarily

implied that the issue of the s. 23(1)(c) damages was also a matter for the judge alone.

29. What is in issue here is in fact an even more precise sub-rule of statutory interpretation, namely, the presumption that

expressions used in a statute bear the same meaning throughout the statutory text. In The State (McGroddy) v. Carr [1975] I.R.275,

285-286 Henchy J. spoke of the “fundamental rule” of interpretation that:-

“…when expressions are repeated in the same instrument and more especially in a particular part of the same instrument,

they should be given a common force and effect unless the context otherwise requires.”

30. It is clear that this principle is obviously engaged in the present case. Indeed, the other reference to the High Court in the

remainder of the section is obviously to a judge sitting alone. Thus, for example, the power given to the High Court in s. 23(1)(a) to

direct a party who made an offer of amends to take certain steps to comply with the terms of that offer is clearly to a judge sitting

alone. The same may be said of the power given to the High Court by s. 23(1)(b) to grant leave to the person who made the offer of

amends to make a correction and an apology “in such terms as may be approved by the court”. The reference to “the High Court” and

to “the court” in these examples drawn from s. 23 is obviously to a judge sitting alone.

31. I cannot, however, agree that it necessarily follows that the reference to the High Court in s. 23(1)(c) insofar as it relates to the

award of damages means that this must also be a reference to a High Court judge sitting alone without a jury. As Henchy J.

recognised in McGroddy this rule or presumption regarding the uniformity of meaning must itself yield to the particular statutory

context. For myself, I see no fundamental inconsistency in concluding that the reference to the High Court in one context (costs)

must be to a judge sitting alone, while in another (the award of damages), it must refer to a judge sitting with a jury. I agree, of

course, that it might have been better had the Oireachtas taken the opportunity to put the matter beyond doubt by the use of clear

and express language in the section, including or excluding (as the case may be) the role of the jury.

32. Yet, as I have already indicated, the failure of the Oireachtas to do just this in this instance compels me to acknowledge that

another key principle of statutory interpretation comes into play in this instance, namely, the presumption against unclear changes in

the law. For good or for ill, the role of the jury in the award of damages in defamation cases is embedded in the fabric of the common

law and that right was expressly preserved by s. 48 of the Supreme Court of Judicature (Ireland) Act 1877 and s. 94 of the Courts of

Justice Act 1924. (It is true that the statutory reference in s. 48 of the 1877 Act is simply to the “right of any party to have

questions of fact tried by a jury”, but this cannot realistically be understood as other than a reference to all the dimensions of jury

trial simpliciter, including the power to award damages).

33. As I pointed out in Lennon, the right to jury trial in what would commonly have been described prior to the Judicature Act as nisi

prius actions (i.e., typically, actions at common law heard by a judge and jury) has in practice subsequently been much abridged by

statute, both before and after 1922. In every such case, however, the abridgment of that entitlement has been done in express

terms. In the absence, therefore, of express statutory words – or, at least, something approaching this – excluding the role of the

jury from one of its traditional functions in a jury trial, I find myself compelled to hold that the plaintiff has the right to an assessment

of damages by a jury in cases coming within s. 23(1)(c) in the case of disagreement following an offer of amends.

34. Nor can I agree that recourse to the provisions of s. 5 of the 2005 Act mandates a different result. Section 5 of the 2005 Act

provides that in construing any provision of an Act (other than a penal statute):-

"(a) That is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of:-

(i) in the case of an Act to which paragraph (a) of that definition relates,.the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case

may be, where that intention can be ascertained from the Act as a whole.”

35. I agree that s. 23(1)(c) of the 2009 Act comes within the definition of a provision that is ambiguous for the purposes of s. 5 of

the 2005 Act. I do not accept, however, that it is open to this Court to arrive at a different construction of this statutory provision

by reference to s. 5 of the 2005 Act. It may well be that, viewed purely subjectively, the Oireachtas intended to dispense with jury

trial in cases coming within s. 23(1)(c) of the 2009 Act. If that was, indeed, the subjective belief of the members of the Oireachtas

when enacting the 2009 Act, it presents the difficulty for this Court that such an intention – if it be such – cannot be plainly

ascertained from the language of the Act as a whole in the manner required by s. 5 of the 2005 Act itself. The Court must, of course,

focus on the words actually used by the Oireachtas to convey its intentions and not seek to construe legislation by reference to the

subjective beliefs and understandings of the legislators: see Crilly v. T J. Farrington Ltd. [2001] IESC 60, [2001] 3 I.R. 267.

36. All of this is really to say that if the Oireachtas wished to abrogate the right to jury trial in respect of the assessment of damages

in s. 23(1)(c), then, given the long standing and embedded nature of that right, clear statutory language would have been required

for this purpose. It is only in that way that the intention of the Oireachtas to effect such a change – if that was indeed the intention

– could have been plainly ascertained from the language of the 2009 Act as a whole. In the absence of such language, I find myself

coerced to conclude that the plaintiff’s right to a jury for the purposes of assessing damages in cases coming within s. 23(1)(c)

remains unaffected by the changes effected by the 2009 Act.

37. It is for all of these reasons that I would approve the reasoning and conclusions of the High Court, save with one caveat which

has no bearing on the ultimate result of the case. I cannot, with respect, agree with Moriarty J. that one may properly contrast the

terms of s. 23 of the 2009 Act with the broadly similar reforms brought about in the United Kingdom via the Defamation Act 1996. No

proper inference can be drawn from the fact that the Oireachtas did (or did not) follow the guide originally provided by the UK

Parliament when enacting the Defamation Act 1996. In this respect it would be difficult to improve upon the reasons given by

McWilliam J. in Breathnach v. McC. [1984] I.R. 340, 246 where he rejected the argument that he could interpret Irish legislation by

reference to UK legislative developments:

“Although I am aware of what Black J. once described as ‘the scissors and paste penchant of our Legislature’, I am of

opinion that I am not entitled, nor should I make any attempt, to interpret a statute of the Oireachtas by reference to

the report of an English Royal Commission which led to a similar English statute. I leave open the question of whether I

would be entitled to consider a report by a similar Irish commission or not.”

38. In this respect I might also observe that the parties referred us in the course of the hearing to the Report of the Legal Advisory

Group on Defamation (March 2003) whose report ultimately paved the way for the Defamation Act 2009. For my part, I did not find it

necessary to have regard to the Report in the construction of the 2009 Act. Indeed, in the light of the Supreme Court’s decision in

Crilly v. T. & J. Farrington Ltd. [2001] IESC 60, [2001] 3 I.R. 267, I would prefer to reserve my position as to whether this Court

would be entitled to look at such pre-enactment legislative materials as an aid to the interpretation of legislation.

Conclusions

39. For these reasons, therefore, I have concluded that the decision of the High Court was correct and the plaintiff is entitled to a

jury trial in respect of the assessment of damages under s. 23(1)(c) of the 2009 Act where the parties cannot agree on the sum

payable following the acceptance of an offer of amends. I would accordingly dismiss the appeal.