Higgins v The Irish Aviation Authority
| Jurisdiction | Ireland |
| Judge | Mr. Justice Bernard J. Barton |
| Judgment Date | 06 November 2019 |
| Neutral Citation | [2019] IEHC 949 |
| Date | 06 November 2019 |
| Docket Number | [2014 No. 3892 P] |
| Court | High Court |
[2019] IEHC 949
THE HIGH COURT
Bernard J. Barton
[2014 No. 3892 P]
Defamation – Statement of correction and apology – Amends – Defendant seeking leave to make a correction and apology – Whether the amount of the defendant’s offer to make amends should be mentioned to the jury
Facts: The defendant, the Irish Aviation Authority, applied to the High Court pursuant to s. 23(1) (b) of the Defamation Act 2009 for leave to make a correction and apology to be read by way of a statement before the court and for directions in relation to the following questions: (i) at what point in the proceedings should the terms of the statement be approved and read; (ii) if approved, is the statement to be read in the presence of the jury; and (iii) may the amount of the defendant’s offer in the sum of €25,000 be mentioned to the jury.
Held by Barton J that the court would exercise its discretion by acceding to the application upon the issuance of a notice of motion and a grounding affidavit to be sworn and filed in court so that the trial may proceed, for which purpose a short adjournment would be granted. The alternative, to adjourn the trial and discharge the jury in order that the application may be brought in the ordinary way would in Barton J’s view be a wholly disproportionate response. Barton J held that, while the rule of practice throughout the entirety of his career at the bar, and subsequently as a judge, prohibited not only mention of the amount but also the fact of a lodgement to a judge or jury, having regard to the provisions of s. 23(1)(c), which confers on the judge and/or the jury all such powers as the court would have had if it were determining damages or costs in a defamation action, and having regard to s. 31(4)(e), which requires the judge or the jury, as the case may be, when carrying out an assessment and determining the amount of any deduction to take account of any offer to make amends under s.22, the making of an offer to pay damages and costs would have to be disclosed. However, for the reasons given by McDermott J in Ward and anor. v Donegal Times Ltd and anor. [2016] IEHC 711, the court directed that the amount was not to be mentioned to the jury.
Barton J held that, certain observations by the court with regard to the wording of the proposed statement having been taken into account, the statement of correction and apology complied with the statutory requirements, same to be read to the court by counsel for the defendant in the presence of the parties. With regard to the question as to whether the statement of correction and apology should be read out in the presence of the jury, Barton J accepted the plaintiff’s submissions that this was neither required nor appropriate. While the statement of correction and apology was likely to feature in the trial as early as the opening address, Barton J was satisfied and the court found for the purposes of s. 23(1)(b) that as the exercise of approval of the terms of the statement was to be carried out by a judge, the ‘court’ before which the statement was to be read meant the judge before whom the parties appeared for that purpose and not the jury. Barton J was fortified in reaching this conclusion by the consequence of compliance with the provisions of Order 1 B r.4 (1). In the ordinary way the application by motion on notice for leave to make a statement of correction and apology pursuant to s. 23(1)(b) would be listed together with other interlocutory motions in a common law motion list and determined by a judge sitting alone; accordingly, Barton J directed that the statement as approved be read before the court in the absence of the jury.
Application granted.
This is the judgment of the Court on the Defendant's application pursuant to s. 23(1) (b) of the Defamation Act 2009 (the 2009 Act) for leave to make a correction and apology to be read by way of a statement before the Court and for directions in relation to the following questions:
(i.) At what point in the proceedings should the terms of the statement be approved and read;
(ii.) If approved, is the statement to be read in the presence of the jury; and
(iii.) May the amount of Defendant's offer in the sum of €25,000 be mentioned to the jury.
To conte×tualise the application a brief background to the case may be found useful.
The Plaintiff is a senior commercial airline pilot and is employed by Aer Lingus as an Airbus captain. The impugned statements giving rise to the proceedings are contained in an exchange of emails published by the Defendant between the 21st June, and the 26th July 2013. The emails passed between and/or were copied to Mr. John Steel, the Defendant's Manager of General Aviation Standards, and Ms. Diane Park, Ms. Mary Ann Chance and Mr. Robert Webb, senior officials employed by the United Kingdom Civil Aviation Authority. The Defendant accepts that the impugned statements were defamatory and that they bore the following meanings attributed to them by the Plaintiff, namely that he:
“(a) flew an aircraft without the appropriate flight crew licence;
(b) flew an aircraft over British Airspace without obtaining the relevant clearance or did so when he was not licensed to do so;
(c) somehow concealed the flight and/or the accident from the relevant authorities by the suggestion that the civil aviation authority (UK) needed “assistance” in “tracking down and contacting the individuals, including their licence and details”;
(d) did or would fly an aircraft without clearance from the relevant Irish authorities; was required to and did not clear his flight plans with either the Gardaí or the Revenue Commissioners;
(e) was in breach of Irish criminal law;
(f) was in breach of Revenue law;
(h) put the safety and life of himself, and a passenger, at risk by flying an aircraft when not properly licensed to do so.”
On the 4th March 2015, the Plaintiff's solicitors wrote a letter demanding delivery of a Defence within 21 days. The Defendant's solicitors replied by letter dated the 25th of May in which they communicated an offer on behalf of the Defendant to make amends pursuant to s.22 of the 2009 Act. The offer was unconditional and applied to each of the impugned statements. Thereafter, further correspondence was exchanged until the 22nd June 2015 when the Plaintiff's solicitors wrote to accept the offer: the acceptance was unconditional.
While there are a number of cases where an offer of amends under s. 22 of the 2009 Act has fallen for consideration, see Ward and Anor v. Donegal Times Ltd and anor. [2016] IEHC 711 and Christie v. TV3 Networks Ltd [2017] IECA 128, this is the first case where the damages to be paid on foot of the offer are to be assessed by a jury, a development which arose as a result of a previous decision of the Supreme Court in this suit on an application for directions brought by the Plaintiff. See Higgins v The Irish Aviation Authority [2018] IESC 29. The following questions had been in issue between the parties:
(i) Whether in High Court proceedings the damages in respect of an offer to make amends and;
(ii) whether the adequacy of any measures undertaken to ensure compliance with the offer pursuant to s. 23 (1) (c) and:
(iii) whether the approval of a statement of correction and apology to be made pursuant to s. 23(1) (b),
were matters for a judge or the jury,
The Plaintiff's motion was issued in October 2015, the parties having failed to resolve their differences, and sought directions with regard to the assessment of damages and the adequacy of any measures undertaken to ensure compliance with the offer to make amends (the adequacy of measures) to be determined by “a judge and jury”. The motion was heard by Moriarty J. on the 15th March 2016. He delivered a reserved judgement on the 12th May 2016 wherein he determined that the damages were to be assessed by a jury, and the court so ordered, however, the issue of the adequacy of measures appears not to have featured in the arguments or, if it did, such was not the subject of any determination or direction by the court.
From this decision the Defendant appealed to the Court of Appeal; the appeal was dismissed. From this order the Defendant appealed to the Supreme Court but this appeal was also dismissed. The questions of whether the assessment of damages under s. 23(1) (c) and whether the approval of the correction and apology statement under s. 23 (1) (b) were matters for the judge or the jury were finally settled by the Supreme Court for the reasons set out in the judgment of the court delivered by Dunne J. on the 10th July 2018. Where the parties cannot agree on the damages or costs to be paid by the party making an offer of amends, the assessment of the damages under s23 (1) (c) in High Court proceedings, where the right to trial by judge and jury has been exercised, is a matter for the jury. However, (a) where measures have been agreed between the parties a direction pursuant to s. 23(1) to the party making the offer to take such measures and (b) the approval of the terms of a statement of correction and apology to be made before the court pursuant to s. 23(1) (b) are matters for the judge.
Given the issues which fall for determination on the subject application, the observations by Dunne J. at para. 49 have proved prophetic and merit repetition:
“Undoubtedly, the Act of 2009 was intended to reform the law of defamation by, inter alia, the introduction of a new ‘offer of amends’ procedure aimed at facilitating early and speedy resolution of defamation proceedings. Apart from the lack of clarity about the central issue which has led to these proceedings and appeals, it is not at all clear from the...
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