After representing Donal Kinsella in his recent recent record-breaking defamation award of €10 million by a Dublin jury, Joe O’Malley examines jury awards in Defamation cases

The highest jury and defamation award in the history of the State was handed down on the evening of Wednesday 17 November 2010 when eleven remaining members of an originally empanelled twelve member jury awarded Donal Kinsella €9,000,000 in compensatory damages and €1,000,000 in aggravated damages after just over three hours of deliberations. While we may be familiar with multi million payouts from American juries this is the first time we have witnessed our peers lay down an award of damages stretching into eight digits.

While the purpose of this article is to focus upon on jury awards in defamation trials, it is worth noting that all High Court defamation, false imprisonment and assault claims fall within the ambit of the jury list which consists of a two or three week long jury session in each law term. This list has been marked by notoriously long queues and generally few trials per session are accommodated. Most Plaintiffs in High Court defamation actions opt for trial by judge and jury although it is permissible for a Plaintiff to opt for a trial by judge alone.

The first striking feature about jury trials from a solicitor’s perspective is that it is the solicitor who is charged with jury selection at the outset of the trial. A list of jurors is published by the jury office on the Monday before the call-over of the jury list of trials and that list provides the name and address and in some instances the occupation of each potential juror. The empanelment of jurors commences with a presiding judge, currently Mr. Justice De Valera reading a short précis of the particular case and then having his registrar randomly select jurors from a crowded courtroom. It is the solicitor’s function to use wisely his or her seven challenges “without cause” in order to facilitate the empanelment of a jury that is considered most favourable to his or her particular case. While each party has an unlimited amount of challenges to proposed jurors “with cause”, this power is rarely exercised. Unlike the American system, an examination of jurors is not permitted thereby removing the art and science to jury selection that is seen to prevail in America. It is often said that jurors are not particularly representative of the community as a whole given that judges tend to excuse jurors who cite work and other commitments to avoid jury service. In any event, this group of individuals is as close as we get to a trial by one’s peers.

The decision making powers afforded to a jury in all trials but particularly in the context of defamation cases, is enormous. In essence, it is the role and function of a jury to decide whether or not the impugned publication constitutes a defamation upon the Plaintiff having heard the evidence tendered by witnesses, submissions from Counsel on behalf of both parties and directions and charges from the trial judge. This decision making power is often complicated by the necessity for jurors to consider issues such as qualified privilege and whether it is defeated by malice. In aid of jurors, an issues paper setting out the relevant questions that require determination is either agreed between the legal representatives of the parties or directed by the trial judge having regard to each party’s proposed draft issues paper. Having considered that all important question of whether the Plaintiff has been defamed, jurors are then given an unlimited reign in relation to their assessment on the compensatory damages and aggravated damages (if any) that should be paid to the Plaintiff for the wrong that has been committed against the Plaintiff save that a trial judge may advise them that damages must be confined to such sum that would fairly and reasonably compensate the Plaintiff for their injuries and diminished standing. Juries are therefore charged with the function of placing a value upon the reputation of the Plaintiff and how a person who has had his or her reputation defamed should be compensated. This unfettered sovereignty within which jurors are permitted to decide issues of damages invariably results in considerable divergence in jury awards from the famous award by a British jury to Albert Reynolds of no damages (subsequently amended by the trial judge to an award of 1 penny) to the recent record breaking award of €10,000,000 by a Dublin jury to Donal Kinsella.

This position which prevails for causes of action arising prior to January 2010 has been imaginatively described by Lord Bingham in a defamation action involving the singer and musician, Elton John, as leaving jurors “in the position of sheep loose on an unfenced common with no shepherd”.

Prior to the jury award in the Kinsella case, the highest award in damages by an Irish jury in a defamation case was €1,872,000 in damages awarded to Monica Leech when a jury decided a series of articles in the Evening Herald in 2004 falsely suggested that Ms. Leech had an affair with the then Minister for the Environment, Martin Cullen. Previous to that, an award of €750,000 was made to Denis O’Brien against Irish Daily Mirror in 2006. Curiously, the O’Brien case signaled another unusual dimension to this unfettered discretion on the part of a jury when the original jury awarded a sum of IR£250,000 for alleging that Mr. O’Brien had paid IR£30,000 to former minister, Ray Burke. The level of award was appealed to the Supreme Court, which found that it was “disproportionately high” and that it could not be regarded as “coming within the grossest and most serious libels which have come before the courts”. However, at the retrial on damages only, the new jury more than doubled the original jury award. The case subsequently settled. Moreover, the Supreme Court in the case of De Rossa v Independent Newspapers endorsed the view that juries should not be given guidelines on damages by judges. In 2005, the European Court of Human Rights upheld the position that the very limited guidance given to jurors in determining libel awards was not in breach of the right to freedom of expression as provided for in Article 10 of the European Convention on Human Rights in an action taken against the State by Independent Newspapers. The Supreme Court has had numerous opportunities to put a brake on this level of jury control but apart from a lone dissenting voice of Ms. Justice Denham, they have on every occasion refrained from doing so.

Newspapers and other Defendants in defamation actions may well argue that high jury awards constitute an affront to justice and create a chilling effect on freedom of expression. Nevertheless, where the well established legal regime allows a jury absolute power to decide on damages without reference to other cases and awards as a guide, then how can we reasonably complain about disproportionate jury awards? Isn’t that the discretion that our legal system has sought to bestow upon our ordinary peers? One must question whether the safety valve on jury awards traditionally operated by the Supreme Court fits squarely within the design of a legal system that on its face bestows unlimited decision making power on all questions of facts on 12 lay persons.

Such arguments may now be academic with the arrival of the Defamation Act 2009. Section 31 is the key provision relating to directions on damages. For the first time in Irish defamation law, parties to the action may make submissions to the court in relation to matters of damages. The trial judge shall also give directions to the jury on the question of damages. Section 31(4) sets out 11 factors which a jury will have regard to in assessing damages. These include the nature and gravity of the allegation; the means and extent of publication; the provision of an apology, correction or retraction; the extent to which the Plaintiff caused or contributed to the publication and the evidence given at trial concerning the Plaintiff’s reputation. A Defendant may also give evidence in order to mitigate damages in respect of any award of damages to the Plaintiff in other actions involving substantially the same allegations. Furthermore, section 13 of the new Act allows the Supreme Court on appeal to substitute for any amount of damages awarded to a Plaintiff, such amount as it considers appropriate. While, these new provisions have yet to be applied in earnest, they certainly signal a tightening of jury reigns and the imposition of court established parameters where there have been virtually none before.

Joseph O’Malley is a partner in Hayes Solicitors The article originally appeared in “Parchment“, the magazine of the Dublin Solicitors Bar Association and is reproduced with permission and thanks.