Higgins v Irish Aviation Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 04 November 2016
• Neutral Citation: [2016] IECA 322
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 242 of 2016],Neutral Citation Number: [2016] IECA 322 Appeal No. 2016 242
• Date: 04 November 2016

BETWEEN/

PADRAIG HIGGINS

PLAINTIFF / RESPONDENT

AND

THE IRISH AVIATION AUTHORITY

DEFENDANT / APPELLANT

[2016] IECA 322

Hogan J.

Peart J.

Hogan J.

Hedigan J.

Neutral Citation Number: [2016] IECA 322

Appeal No. 2016 242

THE COURT OF APPEAL

Practice & procedure – Defamation - Reform of law of defamation – Defamation Act 2009 – Whether plaintiff entitled to have damages determined by jury where offer of amends accepted

Facts: The respondent contended he had been defamed by three emails sent by a member of the appellant body. The appellant had made an unqualified offer of amends under s 22 of the Defamation Act 2009, which was accepted by the respondent. The parties were however unable to agree the appropriate sum of damages payable, which the respondent contended should be determined by a jury under s 23 of that Act. The High Court had found for the respondent on this point, and the matter now came on appeal.

Held by Mr Justice Hogan, that the appeal would be dismissed. Having considered the provisions of ss 22 and 23 of the 2009 Act, and the meaning of “Court” in those provisions, the Court was persuaded that the Oireachtas did not intend to dilute the right to jury trial in the manner submitted by the appellant. Given the important and longstanding nature of that right, express language by the legislature detailing the intended change was required. Breathnach v McC [1984] IR 340 considered.

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,...