Christie v TV3 Television Network Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 12 November 2015
• Neutral Citation: [2015] IEHC 694
• Court: High Court
• Date: 12 November 2015

[2015] IEHC 694

THE HIGH COURT

[Record No. 13293P/2013]

Christie v TV3 Television Network Ltd

Approved Judgment

BETWEEN/

DAVID CHRISTIE

PLAINTIFF

AND

TV3 TELEVISION NETWORK LIMITED

DEFENDANT

Damages & Restitution – Defamation – The Defamation Act, 2009 – Offer of amends – Assessment of damages – Mitigation

Facts: The plaintiff being a solicitor sought an order for assessment for damages for defamation owing to the defendant making an offer of amends and not defending the proceedings. The plaintiff alleged that the defendant had brought distress, embarrassment and defamation to the plaintiff by wrongly showing the footage of the plaintiff instead of his client, also a solicitor, as the person involved in various counts of forgery and theft.

Ms. Justice Iseult O' Malley awarded the sum of €140,000 to the plaintiff. The Court being guided by the observations of Eady J. in Nail v. Jones and News Group Newspapers Ltd [2004] EWHC 647, from the jurisdiction of the United Kingdom held that the ‘offer of amends’ being a conciliation process, the financial compensation in such cases should be partly assessed by the reference of timing, scope and effectiveness of any apology made by the defendant. The Court held that since the alleged publication was on the national television and Internet giving it widespread publicity and the content of the apology being less satisfactory as the use of the term ‘no such offences’ left the suggestion of other offences being committed by the plaintiff, loss caused to the plaintiff by public outrage and indignation by his clients would warrant an award of appropriate damages. The Court held that the alleged defamatory representation of a solicitor could not mitigate the responsibility of a broadcaster as the insult and humiliation caused to the plaintiff and his family outweighed what the defendant described as an innocent mistake.

1 JUDGMENT of Ms. Justice Iseult O'Malley delivered the 12th day of November 2015

2 1. In these proceedings the plaintiff has applied to the court to assess damages for defamation in circumstances where the defendant has, pursuant to the provisions of the Defamation Act, 2009, made an offer of amends and has not defended the proceedings other than by way of making submissions as to how the court should approach the question of damages.

Background facts

3 2. The plaintiff is a solicitor who carries on a mixed civil and criminal practice in a small firm in Dublin. In 2013, he represented a Mr. Thomas Byrne, a by then struck-off solicitor who was charged before the criminal courts with a large number of offences of theft, forgery and fraud. The details of the offences are not relevant here, save for the fact that they were for the most part connected with Mr. Byrne's professional capacity as a solicitor. The case ran for several weeks in October and November, 2013 and attracted widespread publicity. Mr. Byrne, who was on bail throughout the trial, was eventually convicted on all charges and was sentenced to a term of imprisonment.

4 3. On the evening of the 11 ^th November, 2013, in its main news bulletin, the defendant reported on the trial in the following terms:

"The jury in the trial of solicitor Thomas Byrne will resume its deliberations tomorrow morning."

5 It has already spent several hours considering its verdict.

6 The 23-day trial ended this morning with a summing-up from Judge Patrick McCartan.

7 Thomas Byrne has pleaded not guilty to 50 counts of theft, forgery, using forged documents and deception.

8 The total amount involved is almost €52m."

9 4. Unfortunately, these words were accompanied solely by footage of the plaintiff making his way, on his own, into the Criminal Courts of Justice building in Parkgate Street.

10 5. On the 14 ^th November, 2013, the plaintiff's solicitor wrote to the defendant. The broadcast was described as "wholly untrue, false and malicious and grossly and seriously defamatory". A total of 23 separate defamatory assertions were identified as having been made, beginning with an assertion that the plaintiff had been struck off and ending with the assertion that he was a convict. The letter sought an "immediate, unequivocal and suitable" retraction and apology, and the furnishing of proposals for "substantial" compensation.

11 6. By letter of the same date, the defendant's solicitor responded as follows:

"TV3 accept that your client was featured on the news item dealing with the trial of Mr. Thomas Byrne. This was an innocent mistake that arose due to an editing error and for which our client offers their sincere apologies to Mr. Christie. They are prepared to broadcast a clarification and apology on their news bulletins and on tv3.ie in terms to be agreed and you might please let us have your proposed wording. TV3 have taken immediate steps to ensure that the footage cannot be rebroadcast at any time in the future and have also removed it from their online content."

12 In respect of your claim for substantial compensation TV3 denies that the piece was grossly and seriously defamatory of Mr. Christie or that they accused him of the matters set out in your letter. Thomas Byrne's image has featured extensively in television and print media over the last number of weeks and is readily recognisable by the general public as a result. At no point during the piece was your client identified by name. Anybody who visually recognised him would be well aware that he was David Christie and not his/your client, Thomas Byrne.

13 TV3 once again accept that a mistake was made and they are more than willing to apologise for that mistake but they do not accept the allegation that the matter merits substantial compensation as demanded by you."

14 7. On the morning of the following day, the 15 ^th November, 2013, the plaintiff's solicitor took issue with the defendant's approach and asserted that the broadcast "most certainly" identified the plaintiff as Thomas Byrne. The letter continued:

"Furthermore, your letter entirely ignores the rebroadcast streams, where Mr. Christie's image is shown over captions reporting:-"

15 'Thomas Byrne trial'

16 'the jury will resume deliberations in the case of Thomas Byrne tomorrow, who is charged with multiple counts of fraud.'"

17 8. A draft apology was enclosed, to be broadcast on the upcoming 5.30 news bulletin and on the internet. The draft was in the following terms:

"On our 5.30 News Bulletin on Monday, 11 ^th November, 2013 and in subsequent rebroadcasts on various platforms, we published lengthy video images and footage of Mr. David Christie with voice-over wrongly identifying him as solicitor Thomas Byrne who is on trial for fifty counts of theft, forgery and related serious offences."

18 TV3 acknowledges that the unintended reference to Mr. David Christie was wholly untrue, false and grossly defamatory of him.

19 TV3 is happy to clarify this matter and apologises to Mr. Christie and to his family for the distress and embarrassment caused.

20 An agreed sum in compensation has been paid to Mr. Christie, together with a contribution to his legal costs."

21 9. Responding later that day, the defendant offered to broadcast the following apology:

"On our 5.30 News Bulletin on Monday, 11 ^th November 2013 and in subsequent rebroadcasts on various platforms, we broadcast footage of Mr. David Christie with voice-over wrongly identifying him as solicitor Thomas Byrne who is on trial for fifty counts of theft, forgery and related serious offences."

22 TV3 acknowledges that the unintended reference to Mr. David Christie was wholly false and untrue. TV3 are happy to acknowledge that Mr. Christie is a well respected solicitor. We apologise to Mr. Christie and to his family for the distress and embarrassment caused.

23 TV3 has agreed to make a donation to a charity nominated by Mr. Christie."

24 10. The sum proposed by way of charitable donation was €1,000, to be paid as a gesture of goodwill and without any admission of liability.

25 11. This proposal was rejected by the plaintiff's solicitor as displaying

"a continuing determination to belittle our client's concerns and to trivialise your client's outrageous behaviour and its consequences."

26 12. An apology was broadcast later on the 15 ^th November, 2013, as follows:

"On our 5.30 News Bulletin on Monday, 11 November 2013 we broadcast footage of Mr. David Christie during a news item relating to the ongoing trial of former solicitor Thomas Byrne. Mr. Byrne is on trial for a number of serious offences."

27 TV3 would like to clarify that there is absolutely no suggestion that Mr. Christie has been on trial for any such offences. TV3 are happy to acknowledge that Mr. Christie is a well respected solicitor and would like to apologise to Mr. Christie and his family for any distress and embarrassment that may have been caused."

28 13. On the 19 ^th November, 2013, the plaintiff's solicitor complained that the defendant either did not appreciate the seriousness of the defamation or was choosing to ignore it. The broadcast had been described only as a "mistake", when the plaintiff had been identified as the "perpetrator of one of the biggest frauds in the history of the State".

29 14. The correspondence between the parties continued for some time. However, no progress was made, with the defendant holding to its position that an entirely innocent mistake had been made, which had been the subject of prompt and constructive efforts on the part of the defendant and a genuine and fulsome apology. In one letter it said:

"It is worth repeating that Thomas Byrne is an almost uniquely identifiable individual owing to the extraordinary amount of coverage he has received on television and print media over the...