Paidraig Higgins v The Irish Aviation Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Marie Baker,Ms. Justice Elizabeth Dunne,Mr. Justice Gerard Hogan,Mr. Justice John MacMenamin,Mr. Justice Woulfe
• Judgment Date: 07 March 2022
• Neutral Citation: [2022] IESC 13
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000056 High Court Record No. 2014/3892 P

Between/

Paidraig Higgins

Appellant

and

The Irish Aviation Authority

Respondent

[2022] IESC 13

MacMenamin J.

Dunne J.

Baker J.

Woulfe J.

Hogan J.

S:AP:IE:2021:000056

A:AP:IE:2019:000515

High Court Record No. 2014/3892 P

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Defamation – Damages – Proportionality – Plaintiff appealing against award of damages – Whether the Court of Appeal had erred in law in arriving at the figures for general damages and aggravated damages

Facts: In the High Court, the jury awarded the plaintiff, Captain Higgins, €300,000 in general damages, and €130,000 in aggravated damages against the defendant, the Irish Aviation Authority. Applying the “Offer of Amends” procedure set out by s.22 and s. 23 of the Defamation Act 2009, the jury applied a discount of 10% to the overall figure such that the plaintiff stood to recover €387,000 by way of damages. The defendant appealed the award of the High Court. On the 16th June, 2020, the Court of Appeal (Binchy J) held that the award of damages which had been made to the plaintiff in the defamation proceedings was disproportionate, excessive and unreasonable: [2020] IECA 157. The Court of Appeal concluded that the jury award of €300,000 in general damages should be reduced to €70,000, and that the award of €130,000 in aggravated damages should be reduced to €15,000. The court did not interfere with the 10% discount awarded by the jury, holding that the defendant had not acted sufficiently quickly in bringing an offer of amends to court pursuant to s. 22 of the 2009 Act. Thus, in place of the total award of €387,000, the plaintiff’s award was reduced to €76,500. The plaintiff applied for leave to appeal to the Supreme Court. He submitted that the Court of Appeal had erred in law in arriving at the figures for general damages and aggravated damages. In granting leave, the panel of the Court observed that, as this was the first case in which a jury in defamation proceedings had been provided with information concerning the level of awards made in earlier cases, a judgment in the appeal might include guidance as to the manner in which a jury might be instructed as to the quantum of damages to be awarded. Additionally, the determination also identified the following issues as appropriate for consideration: namely the basis upon which jury awards might be overturned on appeal; the extent to which a discount might be given for an offer of amends; and whether it might be possible to set out “bands”, or guidelines, involving a range of appropriate damages drawn from Irish or foreign case law.

Held by MacMenamin J that s. 13(1) of the 2009 Act does not contain clear words which evince a legislative intention to alter the role of appeal courts, or the threshold for an appeal court to substitute its own award of damages for that of a jury in defamation proceedings. He held that while the assessment by a jury of damages for defamation is not sacrosanct, it does carry considerable weight, such that appellate courts have been slow to interfere with such assessments. He held that a jury award of damages should be set aside or reversed only if an appellate court is satisfied that the award is so disproportionate to injury suffered that no reasonable jury would have made the award in all the circumstances of the case. He held that, in general, the appropriate order on appeal is for remittal, but this may not be an immutable rule, and may be subject to other factors such as elapse of time or the exigencies of public interest in the finality of litigation which do not serve the interests of any party in an action for defamation. He held that, in the performance of its duties under s. 31(2) of the 2009 Act, a judge should give specific guidance to a jury by reference to a range of cases, where possible requesting the jury to place the case within the appropriate range or parameter. He held that reference to damages awards in personal injury cases, and the value of money, may be of some assistance to a jury in assessing damages. He held that an award of aggravated damages can be made only within the constraints laid down by s. 31 of the 2009 Act. He held that a judge should charge the jury to assess separate general and, where appropriate, aggravated damages, and thereafter apply a discount, which will operate on a sliding scale to 50% of the potential value of the claim. He held that s. 22 and s. 23 of the 2009 Act require legislative review on the issue of time limits.

MacMenamin J held that the substituted award of general damages should be €175,000 and the substituted award of aggravated damages should be €50,000, both discounted by 10%, giving rise to a total award of €202,500.

Appeal allowed.

JUDGMENT of Ms. Justice Marie Baker delivered on the 7 ^th day of March 2022

1 . I gratefully adopt the analysis of the facts, evidence, legal principles and course of the High Court trial set out in the judgment of MacMenamin J. I write this short judgment primarily to explain why I do not agree with the judgment of Hogan J. on the matters hereinafter mentioned.

2 . This short judgment explains the reasons for my view that this Court should not interfere with the verdict of the jury in its measure of damages for defamation. In that regard I am of the view that Kinsella v. Kenmare Resources plc. [2019] IECA 54, [2019] 2 I.R. 750 can be distinguished, and indeed most other cases, as the level of the award in Kinsella was so manifestly excessive that it does not offer a useful paradigm for the purposes of the present appeal.

3 . As noted by all of my colleagues, Captain Higgins has had a most impressive career from a reading of the transcript he comes across as a most intelligent, careful and reasonable man. He represented himself at the hearing of this appeal, ably assisted by his son, Mr. Joey Higgins. Captain Higgins made careful, considered submissions that did not overstate the arguments he made or the approach he urged this Court to adopt on the appeal. The jury clearly thought very highly of him and that is reflected in the figure awarded for the defamatory actions of the defendant. As MacMenamin J. said in his judgment, Captain Higgins dealt admirably with the vigorous cross-examination and challenge to him in the course of the trial in the High Court. That too must have influenced the jury.

4 . The first matter I wish to address, is the view expressed eloquently by my colleague Hogan J., with regard to the effect of s. 13(1) of the Defamation Act 2009 (“the Act of 2009”) and whether, as he suggests, that subsection may be read as illustrating the intention of the Oireachtas to afford to a court hearing an appeal from a jury award a much wider discretion to recalibrate the figures that had existed theretofore.

5 . The starting point identified by Hogan J. is what has been the starting point in the authorities generally, that an appellate court should be “slow” to interfere with the jury award of damages in defamation cases. He quotes, as I would have, the judgment of Finlay C.J. in Barrett v. Independent Newspapers Ltd. [1986] I.R. 13 at p. 19, and its reference to the “very unusual and emphatic sanctity” to be afforded to a jury decision and award. That was also the approach of this Court in de Rossa v. Independent Newspapers Plc. [1999] 4 I.R. 432, and the judgment of Dunne J. for this Court in Leech v. Independent Newspapers (Ireland) Ltd. [2014] IESC 78, [2015] 2 I.R. 178 where she referred to the “considerable weight” to be afforded to an assessment of damages by a jury, and that a decision to set aside such an award could be made only if it is “so disproportionate” to amount to an unreasonable award.

6 . The award of €10 million for defamation awarded by the jury in Kinsella was undoubtedly disproportionate, not merely disproportionate in the light of other jury awards referred to in the judgments of my colleagues, but also disproportionate to any amount for general damages that could be awarded in any sphere of life, and the figure of €10 million must have had a flavour of winning the Lotto Jackpot, perhaps even the EuroMillions Jackpot, and a figure that high would have afforded any plaintiff with sufficient money to live an extravagant life. An award of general damages could never be intended to produce such extravagance or excess, and an award for loss or damage to reputation is often made in circumstances where a person has not lost his or her earning capacity or other financial security, and therefore is not intended to replace earnings and amount to a windfall in all senses.

7 . The figure awarded by the jury to Captain Higgins in this case does not in my view amount to an exorbitant or excessive figure in this sense, and while it might be seen by some to be high, or even very high, it could also be said to be a moderate figure and one which would not permit Captain Higgins to extravagantly live without working, and could not be said to be a figure in compensation so large as to afford him financial stability and security way beyond the imaginings not just of ordinary citizens, but even relatively wealthy citizens.

8 . Hogan J. expresses the view that the Act of 2009 evidences an intention on the part of the Oireachtas to afford greater flexibility to an appellate court to depart from a damages award by a jury. He argues that s. 13(1) in its use of the word “appropriate” in substituting its award for the award of a jury must be seen as different from the language in s. 96 of the Courts of Justice Act 1924 (as applied by s. 48 of the Courts (Supplemental Provisions) Act 1961) which used the word “proper”.

9 . On a plain reading the words “appropriate” and “proper” are not different in meaning and intent. The Oxford English Dictionary describes each of them in broadly similar terms (“suitable or proper in the circumstances” and “of the required or correct type or form;...