Higgins v The Irish Aviation Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Moriarty
• Judgment Date: 10 May 2016
• Neutral Citation: [2016] IEHC 245
• Court: High Court
• Docket Number: [2014 No. 3892 P.]
• Date: 10 May 2016

[2016] IEHC 245

THE HIGH COURT

Moriarty J.

[2014 No. 3892 P.]

BETWEEN

PADRAIG HIGGINS

PLAINTIFF

AND

THE IRISH AVIATION AUTHORITY

DEFENDANT

Tort – Damages & Restitution – S.23 (1) (c) of the Defamation Act, 2009 – Defamation – Right of assessment of damages by jury trial – Offer to make amends – inclusio unius est exclusio alterius

Facts: Following the initiation of a claim of defamation by the plaintiff against the defendant and an offer to make amends by the defendant, to which no agreement had been reached, the plaintiff now sought direction under s. 23 (1) (c) of the Defamation Act, 2009, for assessment of his damages by the jury. The contention of the plaintiff was pertaining to his right of jury trial for assessment of damages under said s. 23 (1) (c) as the term ‘court’ appearing in that section would include the jury provided that the court was sitting with the jury, while the defendant claimed that the said section referred only to a judge sitting alone.

Mr. Justice Moriarty granted the direction to the effect that the plaintiff was entitled for assessment of his damages by the jury. The Court held that it was bound by the decision of the Court of Appeal in Lennon v. Health service Executive [2015] IECA 92 in which it was held that the right to jury trial in cases of defamation by the High Court, which existed immediately prior to the Supreme Court of Judicature Act (Ireland) 1877, was not amended or altered by any statutory changes and that right to jury trial remained preserved under s. 48 of the said Act of 1877. The Court noted that the Court of Appeal in Lennon case had held that it was the presumption of the legislature of Ireland that all defamation actions in the High Court would be heard by a jury. The Court in the present case held that the legislature of Ireland did not intend to remove the right of jury trial enshrined under s. 23 of the Act of 2009; otherwise, it would have done so expressly. The Court observed that the rule of construction inclusio unius est exclusio alterius came into operation in the present case. The Court held that in the absence of an express intention to remove the right to jury trial under said s. 23, the plaintiff was entitled to determination of his damages being assessed by the jury trial and not a single judge sitting alone.

JUDGMENT of Mr. Justice Moriarty delivered on the l0th day of May, 2016

Introduction

1 The issue arising in this case is whether, pursuant to s. 23(1)(c) of the Defamation Act 2009 (‘the 2009 Act’), the plaintiff is entitled to have damages determined by a jury.

Background

2 The plaintiff sued the defendant for defamation on account of three emails sent by a member of the Irish Aviation Authority (‘the IAA’) in June and July 2013. The emails were sent to other officers within the IAA and a member of the Civil Aviation Authority in the United Kingdom. The plaintiffs claim is limited to these three publications.

3 The plaintiff issued a plenary summons on 16th April, 2614, and a statement of claim was delivered on 1st July, 2014. On 25th May, 2015, the defendant made an unqualified offer to make amends in accordance with s. 22 of the 2009 Act, which was accepted by the plaintiff by letter dated 22nd June, 2015.

4 Following the plaintiffs acceptance, the defendant specified details of its offer to make amends by letter dated 13th July, 2015. In accordance with the terms of s. 22 of the 2009 Act, the defendant's offer to make amends comprised an offer of a sum of money to the plaintiff together with draft wording by way of apology (and a proposal for the circulation of same) and an offer to pay the plaintiffs legal costs to date, such costs to be taxed in default of agreement. However, the parties have been unable to reach an agreement in relation to the terms of the offer to make amends.

5 The plaintiff therefore issued the within motion seeking directions pursuant to s. 23 of the 2009 Act on 29th October, 2015, returnable for 10111 November, 2015. The motion was subsequently transferred to the non-jury list and was made returnable to this court for hearing on 15111 March, 2016.

6 The plaintiff's motion seeks directions, pursuant to s. 23 of the 2009 Act, to have a judge and jury hear the plaintiffs claim with a view to assessing damages or compensation together with the adequacy of the measures already taken by the defendant to ensure compliance with its offer to make amends.

The relevant statutory provisions

7 Section 22 of the 2009 Act provides:

‘22.- (1) A person who has published a statement that is alleged to be defamatory of another person may make an offer to make amends.

(2) An offer to make amends shall-

(a) be in writing,

(b) state that it is an offer to make amends for the purposes of this section, and

(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a ‘qualified offer’) in respect of-

(i) part only of the statement, or

(ii) a particular defamatory meaning only.

(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.

(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer to make amends may be made.

(5) In this section ‘an offer to make amends ‘means an offer-

(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer,

(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and

(c) 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,

whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a), (b) or (c).’

8 Section 23(1) of the Defamation Act 2009 provides:

‘23.- (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.’

9 ‘Court’ is not defined in the 2009 Act, although its meaning is set out in the context of specific sections of the Act. Section 14, for example, provides that the court may give a ruling as to whether the statement in respect of which the action was brought was reasonably capable of bearing the imputation pleaded by the plaintiff and as to whether that imputation is reasonably capable of bearing a defamatory meaning. Section 14(3) goes on to provide that: ‘An application under this section shall be brought by notice of motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury.’

10 In this case, the plaintiff submitted 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. The defendant, however, has submitted that the section refers to a judge sitting alone.

Submissions on behalf of the plaintiff

11 The plaintiff submitted that there has been no determination to date as to whether a plaintiff has a right to a jury trial in order to have damages assessed under s. 23 of the 2009 Act. In Christie v. TV3 [2015] IEHC 694, O'Malley J. sat alone in a defamation action and assessed the plaintiff's damages in circumstances where there was no agreement as to the amount of damages payable following an offer to make amends. In that case, the plaintiff, as was his entitlement, elected to have the matter heard by a judge sitting alone.

12 The plaintiff submitted that the matters to be determined by the High Court, on foot of the directions sought from this court, are the assessment of damages and the payment of costs pursuant to s. 23(1)(c).

13 The plaintiff made reference to s. 31 of the 2009 Act, which provides:

‘31.- (I) The parties in a defamation action may make submissions to the court in relation to the matter of damages.

(2) In a defamation action brought in the High Court, the judge shall give directions to the jury in relation to the matter of damages.

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(8) In this section “court” means, in relation to a...