Christie v TV3 Television Networks Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 04 May 2017
• Neutral Citation: [2017] IECA 128
• Court: Court of Appeal (Ireland)
• Date: 04 May 2017
• Docket Number: [C.A. No. 647 of 2015],Neutral Citation Number: [2017] IECA 128

BETWEEN/

DAVID CHRISTIE

PLAINTIFF/RESPONDENT

AND

TV3 TELEVISION NETWORKS LIMITED

DEFENDANT/APPELLANT

[2017] IECA 128

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 128

No. 2015/647

THE COURT OF APPEAL

Defamation – Damages – Discount – Respondent seeking damages for defamation – Whether the level of discount should be higher

Facts: The plaintiff/respondent, Mr Christie, was unintentionally defamed by an evening television news bulletin broadcast by the defendant/appellant, TV3, on the 11th November 2013. TV3 promptly broadcast an apology to Mr Christie. When the plaintiff commenced proceedings for defamation, TV3 made an offer of amends pursuant to s. 22 of the Defamation Act 2009. It did not seek to defend the proceedings other than to make submissions as to how the court should assess the quantum of damages. In the High Court O'Malley J assessed the starting point of the level of damages in a fully contested case of this kind as being a sum in the region of €200,000. She nevertheless thought that it was appropriate to allow a discount in the region of one third in the light of the offer of amends and an apology. She accordingly awarded Mr Christie the sum of €140,000 ([2015] IEHC 694). TV3 appealed to the Court of Appeal, saying that the starting point of an award of €200,000 damages in a case of this kind is too high and that appropriate weight had not been given to the nature of the apology and the offer of amends. TV3 contended that the level of the discount should be higher and it suggested a figure of 50%.

Held by Hogan J that while this was a serious defamation of the plaintiff, it was not at the level which would merit a starting point of €200,000. Hogan J held that actors such as the one-off nature of the broadcast, the relatively short duration of the broadcast, the failure to name the plaintiff, the lack of animus towards the plaintiff and the fact that it was an obvious error which those closest to Mr Christie – his family, friends, work colleagues and clients – would surely know all took from the seriousness of the defamation. Hogan J held that the appropriate starting point was, accordingly, a figure of €60,000. Hogan J held that while the apology published was satisfactory so that TV3 were entitled to a substantial discount, that discount figure could itself have been higher had, for example, the apology acknowledged that he had been defamed and had apologised for the distress and embarrassment which the publication had caused.

Hogan J held that in those circumstances he would allow the appeal to the extent that he would reduce the starting figure of €200,000 to €60,000 and increase the level of discount from one-third to 40%. He would accordingly substitute a figure of €36,000 for the award of €140,000 made by the High Court as the sum to be paid to Mr Christie by way of damages for defamation.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 4th day of May 2017

1 The plaintiff, David Christie, is a highly respected solicitor of good standing in the profession. He was, unfortunately, unintentionally defamed by an evening television news bulletin broadcast by the defendant, TV3 Television Networks Ltd. ('TV3') on the 11th November 2013. TV3 promptly broadcast an apology to Mr. Christie. When the plaintiff commenced the present proceedings for defamation, TV3 made an offer of amends pursuant to s. 22 of the Defamation Act 2009 ('the 2009 Act'). It did not seek to defend the proceedings other than to make submissions as to how the court should assess the quantum of damages.

2 In the High Court O'Malley J. assessed the starting point of the level of damages in a fully contested case of this kind as being a sum in the region of €200,000. She nevertheless thought that it was appropriate to allow a discount in the region of one third in the light of the offer of amends and an apology. She accordingly awarded Mr. Christie the sum of €140,000: see Christie v. TV3 Television Network Ltd. [2015] IEHC 694. TV3 has now appealed to this Court, saying that the starting point of an award of €200,000 damages in a case of this kind is just too high and that appropriate weight had not been given to the nature of the apology and the offer of amends. TV3 contends that the level of the discount should be higher and it has suggested a figure of 50%.

3 The present appeal accordingly raises the questions of how the court should assess damages in cases of unintentional defamation of this kind and, furthermore, what the appropriate level of discount in cases of this kind where an offer of amends has been made pursuant to s. 22 of the 2009 Act should be. It is understood that this is, in fact, the first case where this aspect of the offer of amends procedure has fallen for consideration at appellate level. Before assessing the difficult legal questions which arise in the course of this appeal, it is, however, necessary to detail the backgrounds facts.

The defamatory publication

4 Mr. Christie had been representing a Thomas Byrne in the course of a long running criminal trial which had run for several weeks in October and November 2013. Mr. Byrne was a former solicitor who had been charged with a multiplicity of fraud related offences and his case had received widespread media coverage. Mr. Byrne, who was on bail throughout the trial, was eventually convicted on all charges and was sentenced to a term of imprisonment.

5 As the trial neared its conclusion TV3's news bulletin broadcast the following account on the evening of 11th November 2013:

'The jury in the trial of solicitor Thomas Byrne will resume its deliberations tomorrow morning. It has already spent several hours considering its verdict. The 23-day trial ended this morning with a summing-up from Judge Patrick McCartan. Thomas Byrne has pleaded not guilty to 50 counts of theft, forgery, using forged documents and deception. The total amount involved is almost €52m.'

6 These words were, however, accompanied by footage of Mr. Christie making his way, into the Criminal Courts of Justice building in Parkgate Street, Dublin 8, albeit unaccompanied by his client, Thomas Byrne. Mr. Christie was not mentioned by name in the course of the broadcast which lasted for approximately nine seconds. The members of the Court have had an opportunity of seeing the broadcast and, indeed, the subsequent apology as broadcast by TV3. It seems clear that the footage showed Mr. Christie rather than Mr. Byrne and that this was as a result of human error.

7 On the 14th 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'. The writer claimed that a variety of defamatory assertions were identified as having been made by the broadcast, beginning with an assertion that the plaintiff had been struck off and ending with the assertion that he was a convicted criminal. The letter sought an 'immediate, unequivocal and suitable' retraction and apology, and the furnishing of proposals for 'substantial' compensation.

8 The defendant's solicitor replied immediately in the following terms:

'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.

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.

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.'

9 Mr. Christie's solicitor responded by enclosing a draft apology which was 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, 11th 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.

TV3 acknowledges that the unintended reference to Mr. David Christie was wholly untrue, false and grossly defamatory of him. TV3 is happy to clarify this matter and apologises to Mr. Christie and to his family for the distress and embarrassment caused. An agreed sum in compensation has been paid to Mr. Christie, together with a contribution to his legal costs.'

10 The defendant replied in turn and it offered to broadcast the following apology:

'On our 5.30 News Bulletin on Monday, 11th 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.

TV3 acknowledges that the unintended reference to Mr. David Christie was...