Higgins v The Irish Aviation Authority White v Sunday Newspapers Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 10 July 2018
• Neutral Citation: [2018] IESC 29
• Court: Supreme Court
• Docket Number: [S.C. Nos. 152 & 148 of 2016],Supreme Court Record No. 152/16 High Court Record No. 2014/3892P Supreme Court Record No. 2016/148 Court of Appeal Record No. 2016/413 High Court Record No. 2013/9967P
• Date: 10 July 2018

BETWEEN

PADRAIG HIGGINS

PLAINTIFF/RESPONDENT

AND

THE IRISH AVIATION AUTHORITY

DEFENDANT/APPELLANT

AND

BETWEEN

PAUL WHITE

PLAINTIFF/RESPONDENT

AND

SUNDAY NEWSPAPERS LIMITED

DEFENDANT/APPELLANT

[2018] IESC 29

Dunne J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

Finlay Geoghegan J.

Supreme Court Record No. 152/16

Court of Appeal Record No. 2016/242 CA

High Court Record No. 2014/3892P

Supreme Court Record No. 2016/148

Court of Appeal Record No. 2016/413

High Court Record No. 2013/9967P

SUPREME COURT

Media – Defamation – Damages – Assessment – Whether entitlement to assessment by jury – S 23 Defamation Act 2009

Facts: The respondents in both cases had accepted an offer to make amends following what they considered to be defamatory publications by the appellants. They were unable to agree to terms in relation to the offer, and applications were made to the High Court under s 23 of the Defamation Act 2009. Both respondents sought the damages to be assessed by a jury, and the High Court had granted the applications. The Court of Appeal had refused to disturb the grant in both instances, and the matters now came on appeal to the Supreme Court.

Held by Dunne J, the other Justices concurring, that the appeals would be dismissed. Having considered the judgment below in the Higgins case and the provisions of s 23, it was clear the Oireachtas had not intended to remove the role of a jury to assess damages in defamation proceedings. If this had been the intention, clear and express words to that effect would be present. Dunne J also commented generally on the Defamation Act 2009. Christie v TV3 Television Network Limited [2015] IEHC 694 considered.

Judgment of Ms. Justice Dunne delivered on the 10th day of July 2018

Introduction

1 These two appeals were heard together as each of the cases raises the identical issue of law, namely:

'Whether a plaintiff is entitled to have damages assessed by a jury pursuant to the provisions of s. 23(1)(c) of the Defamation Act 2009 (hereinafter referred to as the Act of 2009) rather than by a judge sitting alone.'

Section 23(1)(c) of the Act of 2009 is the statutory provision which prescribes the procedure to be followed in defamation proceedings where an offer to make amends has been made by the defendant and accepted by the plaintiff but the parties cannot agree as to the amount of damages or costs that should be paid by the person making the offer of amends. Section 23(1)(c) of the Act of 2009 provides in the part that is relevant to these proceedings that where there is no agreement on damages or costs 'those matters shall be determined by the High Court'. A dispute has arisen between the parties in each case as to the interpretation of the relevant part of s. 23(1)(c) of the Act of 2009 and leave was granted in each case to have an important question of statutory interpretation considered by this Court. This question arises in circumstances where the High Court and the Court of Appeal concluded that the plaintiff/respondent in each case was entitled to have his damages assessed before a jury in the High Court where an offer of amends had been made by the defendant and accepted by the plaintiff.

Background

The Higgins proceedings

2 In these proceedings the plaintiff/respondent (hereinafter referred to as Mr. Higgins) sought damages for defamation arising out of three e-mails sent by a then employee of the defendant/appellant (hereinafter referred to as the Irish Aviation Authority) to the Civil Aviation Authority (hereinafter referred to as the CAA) in the United Kingdom and other employees of the Irish Aviation Authority. The e-mails were sent following communications from the CAA regarding an incident Mr. Higgins was involved in while flying a Microlight aircraft in the United Kingdom. Mr. Higgins claims that the e-mails were defamatory of him. By letter dated 25th May, 2015 the Irish Aviation Authority made an offer to make amends pursuant to s. 22 of the Act of 2009 offering to publish a correction and apology and further offering to pay such sum of compensation or damages and such costs as may be agreed or determined. The offer to make amends was accepted by Mr. Higgins. The parties were unable to agree terms of the offer of amends. An application for directions in respect of a determination under s. 23(1)(c) of the Act of 2009 was listed before the High Court. Mr. Higgins sought a direction that the quantum of damages was to be assessed by a jury. A written judgment was delivered following the hearing of the motion for directions in the High Court (Moriarty J.) [2016] IEHC 245 in which it was determined that Mr. Higgins was entitled to have the quantum of damages pursuant to s. 23(1)(c) of the Act of 2009 assessed before a judge sitting with a jury. That decision was appealed by the Irish Aviation Authority to the Court of Appeal which dismissed the appeal for reasons set out in its judgment delivered on the 4th November, 2016 ( [2016] IECA 322). The Court of Appeal affirmed the right of Mr. Higgins to have his damages assessed by a jury pursuant to s. 23(1)(c) of the Act of 2009.

The White case

3 In these proceedings the plaintiff/respondent (hereinafter referred to as Mr. White) sought damages for defamation arising out of an article and photograph published by the defendant/appellant (hereinafter referred to as the Sunday World) on page 26 of the Sunday World newspaper on the 26th May, 2013 which wrongly contained a photograph of Mr. White. Mr. White claims that the article was grossly defamatory of him and suggested that he had been shot five times by a hitman, that he has enemies who wish him dead, that he is an associate of dissident republicans and members of the organisation styling itself as the Real IRA and that he is an associate of notorious criminals, amongst other things. By letter dated the 31st May, 2013, the Sunday World made an offer to make amends pursuant to s. 22 of the Act of 2009 offering to publish a correction and apology and further offering to pay such sum of compensation or damages and such costs as may be agreed or determined. The offer to make amends was accepted by Mr. White. The parties were unable to agree the terms of the offer of amends and an application for directions in relation to the conduct of an application for a determination under s. 23(1)(c) of the Act of 2009 was listed before the High Court. Mr. White sought a direction that the quantum of damages was to be assessed by a jury. Following the hearing of the motion, an ex tempore judgment was delivered in the High Court on the 12th July, 2016 (Noonan J.) which followed the earlier decision of the High Court (Moriarty J.) on the 10th May, 2016 in the case of Higgins v. Irish Aviation Authority. The Sunday World also appealed to the Court of Appeal and the appeal in this case was determined immediately following the appeal in the Higgins case. In a short ex tempore judgment, the Court of Appeal stated that for the reasons set out in the judgment in the Higgins case it would dismiss the appeal.

The judgment of the Court of Appeal

4 As will be apparent from the background outlined above, the judgment in the Court of Appeal in the White case was a short ex tempore judgment which relied on the judgment in the 'companion' case, Higgins v. Irish Aviation Authority and for that reason it is only necessary to consider the judgment of the Court of Appeal (Hogan J.) delivered on the 4th November, 2016 in the Higgins case.

5 Hogan J. referred to the judgment of Moriarty J. which, he noted, relied on a recent decision of the Court of Appeal in the case of Lennon v. Health Service Executive [2015] 1 I.R. 92, a judgment of the Court delivered by Hogan J., in which it was 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. It was further noted that the right had never been abrogated by the Oireachtas and the Court rejected the idea that the High Court had a discretionary jurisdiction to create exceptions to that right for case management or similar reasons. The Court of Appeal in the present case then noted that it was against that background that Moriarty J. concluded that had the Oireachtas intended to dilute the right to jury trial in the circumstances of this case it would have done in clear language and not obliquely and thus he quoted from a passage of the judgment of Moriarty J. as follows:

'... 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 in s. 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,...