Supreme Court holds 'court' in Defamation Act 2009 s.23(1)(c) includes jury for damages assessment.

SUPREME COURT

Supreme Court Record No. 152/16

Court of Appeal Record No. 2016/242 CA

High Court Record No. 2014/3892P

O'Donnell J.

MacMenamin J.

Dunne J.

O'Malley J.

Finlay Geoghegan J.

BETWEEN

PADRAIG HIGGINS

PLAINTIFF/RESPONDENT

AND

THE IRISH AVIATION AUTHORITY

DEFENDANT/APPELLANT

AND

Supreme Court Record No. 2016/148

Court of Appeal Record No. 2016/413

High Court Record No. 2013/9967P

BETWEEN

PAUL WHITE

PLAINTIFF/RESPONDENT

AND

SUNDAY NEWSPAPERS LIMITED

DEFENDANT/APPELLANT

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, should he wish to do so.”

6. It was from that decision that the matter was appealed to the Court of Appeal.

7. Hogan J. in the course of his judgment observed that the Act of 2009 did not contain a general definition of the word "court" or

indeed "High Court". He referred to a number of specific sections of the Act of 2009 such as s. 26 which deals with the defence of fair

and reasonable publication on a matter of public interest and noted that s. 26(4) provides that in that section "court" is defined as

meaning:

". . . in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury."

He also referred to the provisions of ss. 31 and 32 of the Act of 2009 which deal with the award of damages and aggravated damages

respectively. Sections 31(8) and 32(3) provides that "the court" means the jury in the case of High Court defamation actions where

the High Court is sitting with a jury. Thus he came to the view that the use of the word "court" or "High Court" having been used in

different senses in different parts of the Act and in particular as used in s. 23 of the Act of 2009 would depend on the context and

sense in which those words were used. The Court went on to note the "fundamental rule" of interpretation spoken of by Henchy J. in

the case of the State (McGroddy) v. Carr [1975] I.R. 275, 285 - 286 in which Henchy J. stated:

“. . . when expressions are repeated in the same instrument and more especially in a particular part of the same

instrument, they should be given a common force and effect unless the context otherwise requires.”

Whilst accepting the relevance of that principle the Court went on to say at para. 31 of its judgment:

"I cannot, however, agree that it necessarily follows that the reference to the High Court in s. 23(1)(c) insofar as it

relates to the award of damages means that this must also be a reference to a High Court judge sitting alone without a

jury. As Henchy J. recognised in McGroddy this rule or presumption regarding the uniformity of meaning must itself yield to

the particular statutory context. For myself, I see no fundamental inconsistency in concluding that the reference to the

High Court in one context (costs) must be to a judge sitting alone, while in another (the award of damages), it must refer

to a judge sitting with a jury."

Given that view, the Court then went on to consider another principle of statutory interpretation, namely the presumption against

unclear changes in the law. Accordingly Hogan J. went on to conclude relying on that principle as follows:

"In the absence, therefore, of express statutory words – or, at least, something approaching this – excluding the role of

the jury from one of its traditional functions in a jury trial, I find myself compelled to hold that the plaintiff has the right to

an assessment of damages by a jury in cases coming within s. 23(1)(c) in the case of disagreement following an offer of

amends."

8. The Court of Appeal then went on to consider the provisions of s. 5 of the Interpretation Act 2005. He accepted that the

provisions of s. 23(1)(c) of the Act of 2009 came within the definition of a provision that is ambiguous for the purposes of s. 5 of the

Act of 2005. Nevertheless he expressed the view that it was simply not possible to ascertain from the language of the Act as a whole

the intention of the Oireachtas in regard to this issue. Accordingly he concluded that:

". . . if the Oireachtas wished to abrogate the right to jury trial in respect of the assessment of damages in s. 23(1)(c),

then, . . . clear statutory language would have been required for this purpose."

As he stated:

"It is only in that way that the intention of the Oireachtas to effect such a change – if that was indeed the intention –

could have been plainly ascertained from the language of the 2009 Act as a whole. In the absence of such language, I

find myself coerced to conclude that the plaintiff’s right to a jury for the purposes of assessing damages in cases coming

within s. 23(1)(c) remains unaffected by the changes effected by the 2009 Act."

In those circumstances, the Court of Appeal dismissed the appeal of the Irish Aviation Authority in that case and, as has been made

clear, came to the same conclusion in relation to the White case.

Section 23 of the Defamation Act 2009

9. At this point it would be useful to make reference to the provisions of s. 23(1) of the Defamation Act 2009 which provide as

follows:

"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."

(Emphasis added)

10. It may be necessary in the course of this judgment to refer to further provisions of the Act of 2009 from time to time but, for the

moment, it will suffice to refer to the provisions of s. 22:

“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) or

(c).”

Discussion

11. As can be seen s. 22 sets out the steps to be taken in relation to the making of an offer of amends and in s. 22(5) a definition is

provided of "an offer to make amends". It includes the making of a correction of the alleged defamatory statement together with a

sufficient apology to the person referred to in the alleged defamatory statement, requires the publication of a correction and apology

subject to the limitation that this is to be done in such manner as is reasonable and practicable and involves an offer to pay to the

person concerned a sum in compensation or damages as may be agreed or as may be determined to be payable. Thereafter, s. 23

sets out the provisions that apply once an offer to make amends has been accepted.

12. In the course of his judgment in the Court of Appeal Hogan J. described the procedure in relation to the offer of amends as

provided for in s. 22 of the 2009 Act as being new. It is true that s. 21 of the Defamation Act 1961, provided for the making of an

offer of amends in circumstances of unintentional defamation. The scope of that provision was much more limited and was designed to

give some protection to innocent publishers of material which turned out to be defamatory where the person making the offer of

amends was innocent of the fact that the material published by them contained a defamation. It was not considered to be of much

practical benefit. The former procedure under s. 21 of the Act of 1961 was described by McMahon and Binchy in Law of Torts, 4th

Ed. at para. 34.141 as follows:

"Insofar as s. 21 of the Defamation Act 1961 was designed to give some relief to defendants who published statements

unintentionally referring to persons, it failed. According to Cox, the 'defence had proved useless in both English and Irish

defamation law'. The new legislation repealed s. 21 of the 1961 Act and replaced it with a new defence entitled "Offer of

Amends" (Section 22 of 2009 Act). The new defence is not primarily designed to address the hardship of unintentional

references in the defendant's statement, but is an approach which encourages early settlements outside the courts in all

defamation suits (it is similar to provisions already contained in Britain in the Defamation Act 1996) and as such can also

be availed of by defendants who make unintentional references.”

13. Neville Cox in his book, Defamation Law, writing in 2007, referred to the Defamation Bill 2006 which subsequently became the

Defamation Act of 2009 and made the following observations at para. 10.3.1:

"Like its statutory predecessor, the Defamation Bill 2006 (ss. 20 and 21) also provides for an 'offer of amends' procedure,

but it is an error to think that the proposed procedure in the Bill is, in any sense, a replacement of that which existed

under s. 21 of the 1961 Act. In fact it, like its English equivalent, is an entirely different defence, underpinned by different

motivations. Thus whereas the old defence was about protecting innocent publishers, the proposed new defence is about

facilitating expeditious resolution of actions, hopefully without involving the courts at all, and certainly without involving a

jury. Indeed to this extent it may be suggested that this represents (at least potentially) one of the most important

reforms of defamation law proposed by the Bill."

14. His observation that the proposed new defence was about facilitating expeditious resolution of actions "certainly without involving

a jury" is central to the issue before this Court as to the correct interpretation of the provisions of s. 23 of the Act of 2009. The

intent to expand the utility of the new provisions as contrasted with the limited defence provided under s. 21 of the Act of 1961

cannot be disputed. As already mentioned, s. 21 of the Act of 1961 was limited to "innocent" publishers and did not involve the

payment or assessment of damages. It is not necessary for the purposes of this judgment to engage in a detailed comparison of the

provisions of s. 21 of the Act of 1961 and the provisions of ss. 22 and 23 of the Act of 2009. Suffice it to say that the scope of the

provisions of the Act of 2009 is broader than the preceding legislation and includes not only those who could claim to have been the

innocent publisher of a defamatory statement but also the person or persons responsible for originating the alleged defamatory

statement. It also provides for the payment of compensation or damages as well. Accordingly, it is clear that the Act of 2009 now

includes a new procedure designed to facilitate the parties to defamation proceedings either in being, or contemplated, to resolve

their dispute at an earlier stage.

15. Much reliance was placed by counsel for the respective appellants on the fact that ss. 22 and 23 of the Act of 2009 introduces a

new procedure in relation to the offer of amends. They contended that the effect of the new procedure was, as Hogan J. recognised

in the Court of Appeal, "to encourage the parties to settle their disputes quickly and in a cost effective manner where the defendant

is prepared to admit liability and to acknowledge that the plaintiff has been wronged" and consequently, that what was described in

the course of submissions as the "Lennon presumption" (that a plaintiff is entitled to a jury trial) does not apply to the offer of

amends procedure. It was argued that if it was the intention of the Oireachtas to ensure a prompt resolution of disputes then that

intention would be defeated if a jury was required to assess damages in the context of an offer of amends in circumstances where

the parties could not themselves agree on the quantum of damages.

16. By contrast, counsel on behalf of the respondents in each case argued that the assessment of damages in a defamation action

was quintessentially a matter for a jury regardless of whether or not the assessment of damages arose in the context of a fully

contested action for defamation or was an assessment of damages pursuant to the provisions of s. 23(1) of the Act of 2009.

17. A key finding in the judgment of the Court of Appeal in the Higgins case is to be found at paras. 26 and 27 of the judgment where

it is stated by Hogan J. as follows:

"All of this suggests that even if the procedure for making amends under s.22 is innovative and novel, it does not

fundamentally alter the nature of the task of assessing damages under s. 23(1)(c). This task essentially remains the same

which regularly confronts juries in contested defamation actions. The only new element is the level of discount of

damages to be granted by reason of the timely and fulsome offer to make amends (if such there be). This, however, is a

matter on which a jury functioning in the context of s. 23(1)(c) could readily be instructed.

One may thus conclude that the essential novelty of the s. 22 and s. 23 offer of amends procedure does not

fundamentally alter the task confronting a jury called upon to assess damages in such cases. In other words, this is not a

task which, in the nature of things, could only properly be performed by a judge. Quite the contrary, since s. 23(1)(c)

engages a staple and traditional function of a jury in defamation cases (namely, the award of damages), it cannot be said

that either the existence of this new procedure or, more specifically, the function which the Court is called upon to

perform (namely, to award damages) implicitly displaces the Lennon presumption that a plaintiff is entitled to a jury trial."

18. Reference was made in that passage to the question of a discount of damages by reason of the making of an offer of amends. It

would be useful to explain that reference. Prior to the two cases the subject matter of these appeals, the only previous case in which

the issue of the determination of the amount of damages pursuant to s. 23(1)(c) arose was in the case of Christie v. TV3 Television

Network Limited [2015] IEHC 694. In that case, the assessment of damages was considered by O'Malley J. sitting without a jury. The

procedure adopted in that case, i.e. to sit without a jury, was not the subject of any consideration by either of the parties to those

proceedings. In the course of the decision, the learned trial judge allowed a discount in the region of one-third of the damages

appropriate to award by reason of the offer to make amends including an apology. Hence, whatever else may be said about the

procedure following the making of an offer of amends, it does follow that a prompt offer of amends will have a benefit for a defendant

insofar as the assessment of the sum to be awarded is concerned.

19. Leaving aside that issue, it is now appropriate to look at the provisions of the Act of 2009 in some more detail in order to consider

the meaning of the words "the court" as used in section 23(1). In doing so, I think it is important to state at the outset that in

considering the interpretation of s. 23(1) there is little dispute between the parties as to the appropriate principles of interpretation

that should be borne in mind. Thus, reference has been made to para. 5.114 of Dodd and Cush on Statutory Interpretation in Ireland

in which the author identified the following proposition of interpretation:

"When expressions are repeated in an enactment, and especially in a particular part of the same enactment, it is logical

that they should be given a common meaning, force and effect unless the context requires otherwise."

In support of this statement, reliance was placed on the decision in the case of McGroddy v. Carr in which Henchy J. stated as

follows:

"The words 'under the influence of intoxicating liquor or a drug' would produce two offences when used in s. 49. but only

one offence when used in section 50. This, to my mind, would be contrary to common sense and to the fundamental rule

of interpretation that when expressions are repeated in the same instrument, and more especially in a particular part of

the same instrument, they should be given a common force and effect unless the context requires otherwise."

20. Therefore, it seems to me, that in considering the provisions of s. 23(1)(c), the key question is what does the phrase "the court"

mean, in the context in which it is used therein, and do the meanings of that phrase as used in other provisions of s. 23(1) assist in

its interpretation. It should be borne in mind when embarking on this consideration that there is no definition of "the court" in the

definition section of the Act. Section 23(1)(a) deals with the measures that should be taken by the person who made the offer of

amends to ensure compliance with the terms of the offer. It is provided that the High Court may upon the application of the person to

whom the offer was made, direct the party who made the offer to take the measures agreed. In the case that proceedings have

already been brought, s. 23(1)(a) provides that the application in such circumstances should be brought to the court in which the

defamation action has been brought, i.e. the Circuit Court or the High Court. At issue, therefore, is the making of an order to enforce

compliance with the terms of the offer of amends as to the measures agreed. An order of the court is required; therefore, “the

court”, in that context can only mean a judge sitting alone. A jury could have no role in the making of orders to ensure compliance.

21. Section 23(1)(b) deals with the situation in which the parties cannot agree on the measures to be taken and such an application

can be brought by the person who made the offer of amends for the approval of the High Court or where a defamation action has

already been brought the court in which it was brought to make a correction and apology. This involves the making of a statement

before the court in such terms as may be approved by the court and involves the giving of an undertaking as to the publication of

any such correction and apology. As in the case of s. 23(1)(a) it is quite clear that the court in this instance whether it be the High

Court or the Circuit Court could only refer to a judge sitting alone in the context of such an application being made in the High Court

given that a jury would have no role in approving the terms of such statement of correction and apology. Therefore, having regard to

the provisions of ss. 23(1)(a) and 23(1)(b) one could safely say that the use of the term "the court" in those paragraphs of s. 23(1)

could only be understood as a reference to a judge sitting alone.

Other provisions of the Act of 2009

22. Before looking at the terms of s. 23(1)(c) in detail, it would be helpful to consider some of the other provisions of the Act of 2009

and the use of the phrase "the court" in other sections.

23. It was pointed out on behalf of the appellants that a number of sections of the Act of 2009 make reference to the court and also

set out the role of the jury (or the absence of a role for the jury as the case may be) in certain circumstances. Thus s. 14 of the Act

provides for rulings as to meanings pleaded by a plaintiff in defamation proceedings. Section 14(3) specifically provides as follows:

"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."

24. As was accepted in the appellants' submissions, it has always been a matter for the judge to determine whether or not words are

reasonably capable of bearing a particular meaning or whether or not that meaning is reasonably capable of bearing a defamatory

meaning. That was always the function of the judge and never the function of the jury. Once the judge had determined that the

words concerned were capable of bearing a defamatory meaning, it was then a matter for the jury to determine whether they did in

fact have that meaning. It was suggested on behalf of the appellants that even if s. 14(3) had not expressly provided for the

absence of the jury in this context, it was nonetheless clear that the reference to the court in s. 14 is a reference to a judge. That

particular provision was considered by the High Court in the case of Griffin v. Sunday Newspapers [2012] 1 I.R. 114, where Kearns P.,

having examined s. 14, concluded that it "did little more than codify existing legal principles and did not, of itself, constitute any

significant extension of the law". That is undoubtedly correct and as is clear, the appellants did not take issue with the conclusion of

Kearns P.

25. Section 20 sets out the provisions in relation to the defence of honest opinion and in s. 21 reference is made to matters to be

considered by "the court" for the purpose of distinguishing between a statement consisting of allegations of fact and a statement

consisting of opinion. No information is provided in s. 21 as to what is meant by the term "the court" in that context. Interestingly,

Cox and McCullough in Defamation: Law and Practice make the observation at para. 10 - 47 in relation to s. 21 that:

"Having said that, there are also circumstances where reference in the Act to 'the court' clearly may involve a reference

to a jury (for example, in s. 21, which deals with matters to be borne in mind in distinguishing between facts and opinions

for the purpose of the defence of honest opinion). Even in those cases, however, the phrase may also encompass the

judge alone, because s/he will also have to take these matters into account in reaching determinations on the same

issues."

26. Section 26 of the Act of 2009 deals with the defence of fair and reasonable publication on a matter of public interest and there is

in that section a specific definition of court. Subsection (26)(4) provides as follows:

"In this section -

'court' means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a

jury."

Section 26(2) sets out the matters to be taken into account by "the court" in determining whether it was fair and reasonable to

publish the statement concerned including the seriousness of any allegations made in the statement, the context and content of the

statement and the extent to which there were exceptional circumstances that necessitated the publication of the statement on the

date of publication, amongst other things. Given the nature of a defamation trial, it is clear that these are matters which would be

part of the essential function of a jury in a defamation action and thus it is not surprising that in considering this defence, there could

be no surprise that "the court" in s. 26(4) is defined as meaning the jury, if the High Court is sitting with a jury.

27. Section 27 deals with the defence of innocent publication and makes reference in s. 27(3) to "the court". It provides that the

court for the purposes of determining whether a person took reasonable care shall have regard to a number of matters including the

extent of the person's responsibility for the content of the statement or the decision to publish it and the nature or circumstances of

the publication and finally the previous conduct or character of the person. No definition is provided in s. 27 of the meaning of the

word "court" as used in that section but clearly, whether or not the defence of innocent publication could succeed is a matter for the

consideration of the jury where the High Court is sitting with a jury.

28. There is a reference in s. 30, which deals with correction orders, to an action tried in the High Court sitting with a jury but the

context concerns an application made to the court by the plaintiff seeking an order directing the defendant to publish a correction of

the defamatory statement. Given that this is a section dealing with the possibility of the making of a correction order, it is clear that

such an application could only be made to the judge even where sitting with a jury. The reference in that section is concerned with

the time during the course of the trial at which such an application can be made and makes it clear, that the function of deciding

when such application can be made is when "the trial judge directs".

29. The final provisions of the Act which have some relevance to this issue are ss. 31 and 32. Section 31 deals with the question of

damages and s. 32 deals with aggravated and punitive damages. Section 31 provides amongst other things that in a defamation

action brought in the High Court the judge shall give directions to the jury in relation to the matter of damages. Thus the respective

roles of judge and jury are made clear. It is also provided that the parties may make submissions to the court in relation to the

question of damages. Thereafter s. 31(4) sets out a number of matters to which "the court" shall have regard to in making an award

of general damages. Section 31(7) goes on to provide that the court in a defamation action may make an award of special damages.

Finally, s. 31(8) provides as follows:

"In this section 'court' means, in relation to a defamation action brought in the High Court, the jury, if the High Court is

sitting with a jury."

30. As I have already mentioned, s. 32 deals with the circumstances giving rise to the award of aggravated and punitive damages.

Thus s. 32(1) deals with the circumstances in which aggravated damages may be awarded by the court and s. 32(2) sets out the

circumstances in which in addition to general, special or aggravated damages payable may order the defendant to pay to the plaintiff

punitive damages. Section 32(3) is in the same terms as s. 31(8).

31. Counsel for the appellants have relied very much on the fact that the Oireachtas in the case of the award of damages, be it

general damages, special damages, aggravated or punitive damages has provided an explicit definition of the phrase "the court"

spelling out the fact that “the court” in those instances means the jury. By contrast, they point out that the other provision dealing

with damages, namely s. 23(1)(c), contains no such provision and rely on the lack of such provision to argue that no jury is required

in that context.

32. It seems to me that the one thing that can be said about the use of the phrase "the court" is that there is a lack of consistency

in the approach to the provision of a definition of "the court" in the course of the Act. One might ask the question why it was

necessary to spell out the fact that the phrase "the court" when used in relation to the making of an award of damages of whatever

category in ss. 31 and 32 means the jury in cases in the High Court where the court is sitting with a jury. The assessment of

damages has always been a core function of a jury in defamation actions where the court is sitting with a jury. In relation to a

number of the defences provided for in the course of the Act, as we have seen, such as s. 21 in the context of the defence of

honest opinion and s. 27 in relation to innocent publication reference is made to the court but no definition of the court is given, even

though, in the context of those sections, clearly, the reference to "the court" can only mean the jury where the High Court is sitting

with a jury. In each case the provisions of those sections are spelling out the matters to be taken into consideration in considering

the defences raised. This contrasts with the provisions of ss. 31 and 32 where a definition of "the court" is given and s. 30, where,

while there is no definition given, there is an express reference to the role of the trial judge.

33. Little or no assistance can be derived from the Act of 2009 as a whole as to what is meant by the phrase "the court" when used

in s. 23(1)(c), given that a definition is provided in some parts of the Act and not in others and that the meaning of the phrase quite

clearly varies from section to section. One might add that where a definition has been provided, it is often doing no more than stating

the obvious as in ss. 31 and 32. As I have said, the argument was made on behalf of the appellants that in the only other provisions

of the Act, ss. 31 and 32 dealing with the question of damages apart from s. 23(1)(c) , an express definition is to be found and no

such definition is to be found in s. 23 (1)(c), giving rise to the contention that in the absence of a reference to a jury in s. 23(1)(c),

the Oireachtas intended that a jury was not to have a role in section 23 (1)(c). In truth, despite the reliance placed on this

contention by counsel for the appellants, this does not provide me with any real assistance in considering the central issue in this

case given the lack of consistency of approach to the use of a definition of "the court" in other sections of the Act of 2009. The

function of assessing general damages, special damages, aggravated or punitive damages has always been a function of the jury and

was not conferred on a jury for the first time by the provisions of the Act of 2009. To paraphrase Kearns P. in the case of Griffin

referred to previously, this is no more than codifying existing legal principles and does not constitute any extension of the law. I am

reluctant, without more, to make an assumption that because "the court" is defined as the jury in ss. 31 and 32 that the absence of

such a definition in s23(1)(c) means that "the court" is intended to mean the judge in that subsection.

34. Given the difficulty in coming to a clear view on the interpretation of s. 23(1)(c) by reference to other provisions of the Act

where a definition of "the court" is provided, it is now necessary to look in some more detail at the provisions of s. 23(1)(c).

35. Put succinctly and as Hogan J. in the Court of Appeal said:

"The absence of any uniform definition of the terms 'court' or 'High Court' and the fact that these words are used by the

2009 Act in different senses in different contexts means that the determination of the meaning to be ascribed to these

words as they are used in s. 23 will depend on the particular context and sense in which these words have been

deployed."

Section 23(1)(c)

36. I have previously set out the provisions of s. 23(1)(c) of the Act of 2009 but given the centrality of this provision to the

arguments in this case I propose to refer briefly to the central provisions of that subsection again. It will be recalled that it provides

that:

"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, . . 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 . . ."

37. If the interpretation of the High Court and the Court of Appeal as to the meaning of s. 23(1)(c) is correct in concluding that the

section permits a jury to determine the amount of damages payable pursuant to an offer of amends, then it follows as a matter of

logic that the phrase "the court" as used in s. 23(1)(c) has, in fact, two meanings. First of all, when the phrase is used in the context

of costs, it follows that it must mean the judge in circumstances where it would be no part of the function of a jury and never has

been to deal with the question of costs and secondly, insofar as it is dealing with the question of damages, it means the jury.

38. Given the lack of a uniform definition of the phrase "the court" in the Act of 2009, a key element of the decision of the Court of

Appeal (and indeed, that of the High Court) was, as previously mentioned, the finding of the High Court in the case of Lennon that a

plaintiff had a complete statutory entitlement to have his claim for damages determined by a jury even where liability was conceded

and the issue was simply one of an assessment of damages only. Relying on that entitlement, the Court of Appeal expressed the view

that the approach to be taken was to consider whether the pre-existing statutory right to have damages assessed by a jury has

been displaced, either expressly or by necessary implication by the provisions of s. 23(1)(c) of the Act of 2009.

39. Counsel for the appellants laid emphasis on the fact that the procedure provided for in ss. 22 and 23 of the Act of 2009 is a new

bespoke procedure. Reference was made to the decision of the High Court in Christie v. TV3 Television Network Limited, referred to

previously, in which O'Malley J. considered this procedure and at paras. 87 to 88 cited a passage from the judgment of Eady J. in the

case of Nail v. Jones and News Group Newspapers Limited [2004] EWHC 647 as follows:

"87. In considering the proper approach to compensation under the procedure, Eady J. said (at paragraphs 35 and 36 of

the judgment):

“The offer of amends regime provides, as it was supposed to, a process of conciliation. It is fundamentally important

that when an offer has been made, and accepted, any claimant knows from that point on that he has effectively

'won'. He is to receive compensation and an apology or correction. In any proceedings which have to take place to

resolve outstanding issues, there is unlikely to be any attack upon his character. The very adoption of the

procedure has therefore a major deflationary effect upon the appropriate level of compensation. This is for two

reasons. From the defendant's perspective he is behaving reasonably. He puts his hands up, and accepts that he

has to make amends for his wrongdoing. As to the claimant, the stress of litigation has from that moment at least

been significantly reduced.

Whereas juries used to compensate for the impact of the libel 'down to the moment of the verdict', once an offer of

amends has been accepted the impact of the libel upon the claimant's feelings will have greatly diminished and, as

soon as the apology is published, it is also hoped that reputation will to a large extent be restored…”

88. The judge noted the submission made on behalf of the defendants that media defendants would be reluctant to utilise

the procedure if they did not feel that they would get what was termed 'a healthy discount' for so doing. He considered

this to be a fair point, given the public policy objectives underlying the legislation and given his own view that defendants

who promptly apologise are entitled to be rewarded."

On the basis of the passage referred to above, counsel on behalf of the appellants made the point that once a plaintiff has accepted

an offer of amends, given that they have "effectively won", the defamation proceedings are over in practical terms save for disputes

as to the terms of the compromise.

40. A further passage from the judgment of O'Malley J. was referred to as follows (para. 101):

"In my view the best approach to this situation is that adopted by Eady J. in Nail. The defendant had the options of

contesting a full action, or making a qualified offer of amends. It chose to make an unqualified one, and that means

accepting that the plaintiff was defamed. I further consider that, allowing for the possibility that the court might disregard

exaggerated or distorted meanings attributed by a plaintiff to a publication, adoption of this procedure must in general

mean that the defendant is bound by the meanings pleaded by the plaintiff. To hold otherwise could mean that a

defendant could, in effect, run a full defence without having to plead it and without having to go to the full expense and

risk of a jury trial."

Eady J. in the Nail case was referring to the similar provisions to be found in the Defamation Act 1996 in the United Kingdom.

Reference was made in the course of the submissions to the description of that procedure by Gatley, Libel and Slander, 12th Ed., at

para. 29.28 et seq.:

"The procedure introduced by ss. 2 and 3 of the Defamation Act 1996 can be regarded as a means of settlement provided

by statute in which the court is given a role in enforcing the settlement and determining suitable compensation. Its

objective is to enable defamation defendants who accept that they have made a mistake to avoid prolonged and

expensive litigation in circumstances where they are prepared to acknowledge the wrong and to make reasonable amends.

The procedure has proved much more popular than its cumbersome predecessor."

Gatley continued to describe the consequences of acceptance as follows:

"The main consequence is that the party accepting the offer may not bring or continue proceedings in respect of the

publication concerned against the person making the offer. However he is entitled to enforce the offer and he may apply

to the court for an order that the other party fulfil his offer by taking a step which had been agreed and for determination

of the amount to be paid by way of compensation and costs if that cannot be agreed."

The approach to be taken in relation to the quantification of damages once an offer of amends has been made, was outlined by Eady

J. and accepted by O'Malley J., namely, that in making an offer of amends as described, a defendant is entitled to a discount in

relation to the damages that might otherwise fall to be paid. However, there is one vital difference between the provisions of s. 3 of

the Defamation Act 1996 and the provisions contained in the Act of 2009 in that s. 3 of the United Kingdom legislation in relation to

the accepting of an offer to make amends expressly provides at subs. (10) as follows:

"Proceedings under this section shall be heard and determined without a jury."

41. I have no doubt that the intention behind the Act of 2009 is the same as its equivalent in the United Kingdom, as Gatley has

described:

"To enable defamation defendants who accept that they have made a mistake to avoid prolonged and expensive litigation

in circumstances where they are prepared to acknowledge the wrong and to make reasonable amends."

42. There can be little doubt that the objective of ss. 22 and 23 was to facilitate early expeditious and more economic resolution of

defamation actions. See, for example, the observations made by Cox and McCullough in Defamation: Law and Practice. Interestingly,

Cox, when writing in Defamation Law (2007) about the Bill which ultimately became the Act of 2009 was of the view that the new

procedure provided for in the Bill "represents a means of preventing a jury from deciding on the appropriate quantum of damages in

the case". Writing subsequently, following the enactment of the legislation, the authors acknowledged that there were arguments to

be made either way as to whether there was still a role for a jury in the offer of amends procedures. As they said at para. 10 - 44:

"On the one hand, it may be argued that, in general, the determination of damages in a defamation action is one for a jury

and the offer of amends procedure should be no different. It may be further argued that, in any event, the offer of

amends procedure was largely copied from its English counterpart, and thus, that if the legislature had intended to

exclude the jury in this regard it would surely have specified this fact in the Act. On the other hand, there are a number

of reasons why it may be strongly argued that in fact it would not make sense to interpret the section as meaning that

the jury would be involved in the procedure."

McMahon and Binchy in the Law of Torts (4th Ed.) appeared to make an assumption that an offer of amends may have to come

before a judge without a jury for determination. As was said at para. 34.148:

"If the defendant does not negotiate the details, although he may avoid a jury determination, he will still have to subject

his offer to the judge for finalisation."

43. The issue presented in this case is as Hogan J. pointed out, a difficult one. The usual principle of statutory interpretation to the

effect that an expression used in a statute bears the same meaning throughout the text of the statute cannot be determinative of

the issue given the different ways in which the phrase "the court" is used throughout the Act of 2009. The words of Henchy J.

referred to previously from The State (McGroddy) v. Carr when he spoke of giving common effect to the same expression: "unless the

context otherwise requires" have particular resonance here. In this case, context is everything. While the procedure provided for in

ss. 22 and 23 is, without doubt, a new and innovative procedure designed to bring about a speedy resolution of defamation actions

where commenced or to resolve the issues that would give rise to a defamation action, if possible, before the commencement of

proceedings, the essence of the procedure is to put the plaintiff back in the position he or she would have been in prior to the

publication of the alleged defamation. The offer of amends involves three elements, the making of a correction, an apology and the

payment of damages to be paid to the person alleged to have been defamed. Prior to the 2009 Act, the assessment of damages was

always the function of a jury. Hogan J. in Lennon traced the statutory history of the involvement of juries in civil litigation. As he

noted, the role of juries has "in practice been much abridged by statute, both before and after 1922". One of the few areas left in

which a plaintiff is entitled to have a jury determine the issues of fact and to assess damages is in defamation actions. Damages have

always been quintessentially a matter for the jury in High Court defamation proceedings. The fact that the offer of amends procedure

is new and innovative does not detract from the fact that if the parties cannot agree on the level of damages, the matter has to be

determined by the High Court where its jurisdiction is invoked. The High Court has always meant a jury in the context of the

assessment of damages. That being so, could the legislature in enacting s. 23(1)(c) have intended to abolish the right of a plaintiff or

applicant to have damages assessed by a jury in the absence of an express curtailment of that entitlement? In the Court of Appeal

judgment, reference was made to the decision of this Court in Bederev v. Ireland [2016] 2 ILRM 340, at pp. 360 to 361 in which

Charleton J. writing for the Court stated:

"There is a presumption against an accidental alteration of the law. The following passage from Maxwell on the

Interpretation of Statutes (11th Ed., Sweet & Maxwell, London, 1962) at pp. 78 and 79 puts the matter as a presumption

against any radical implicit alteration of law:-

'One of these presumptions is that the legislature does not intend to make any substantial alteration in the law

beyond what it explicitly declares, either in express terms or by clear implication, or, in other words, beyond the

immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed.

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or

depart from the general system of law, without expressing its intentions with irresistible clearness, and to give any

such effect to general words, simply because they have a meaning that would lead thereto when used in either

their widest, their usual or their natural sense, would be to give them a meaning other than that which was actually

intended.'

The general system of law, described by Maxwell, consists of the corpus of legislation and requires the 1977 Act to be

considered in its proper context: as a legislative measure targeted at particular ends and within an existing corpus of law.

. . . It is to be stressed that radical and far-reaching changes to the law cannot occur through ambiguous language;

O'Connell v. Bank of Ireland [1998] 2 I.R. 596; 1998 2 ILRM 465. In the consideration of a particular section or subsection

of an enactment, context is information; context both within the enactment and within where the enactment fits in the

legislative body. In analysing the mischief which legislation is designed to address, how an enactment is bookended by

other statutes informs its scope; see Bennion, Statutory Interpretation (6th Ed., Butterworths, London, 2013) where it is

suggested at p. 540 that:-

'The interpreter should treat the express words of an enactment as illumined by consideration of its context or

setting. The words are not deployed in a vacuum . . . Courts accordingly may have regard to the legislative history,

the statutory context furnished by legislation in pari materia [on the same subject], and the common law context.'"

While there was some criticism by counsel on behalf of the appellants as to the interpretation of Bederev by Hogan J. in the Court of

Appeal, I cannot see any basis for arguing that the analysis by the learned judge of the Court of Appeal was incorrect.

44. Relying on those principles, Hogan J. in the Court of Appeal concluded that in the absence of clear or express words excluding a

jury from having a role in determining damages in accordance with the provisions of s. 23(1)(c) that the plaintiff had a right to an

assessment of damages by a jury in such cases following a disagreement as to the amount of damages to be paid following the

making of an offer of amends. I see no reason to disagree with that conclusion.

Conclusion

45. Section 23(1)(c) introduced a new bespoke offer of amends procedure. Its purpose was to facilitate early and speedy resolution

of defamation proceedings and, if possible, to avoid the necessity to issue such proceedings. The use of the phrase "the court" in the

context of the determination of the sum of damages to which a defamed person is entitled is not defined in section 23(1). The use of

that phrase in other parts of the Act, whether defined expressly or not, does not provide clarity or assistance to the interpretation of

that phrase as used in section 23(1)(c). Reference to the old offer of amends procedures provided in s. 21 of the Defamation Act

1961 likewise does not provide any assistance as to interpretation given that under that procedure there was no role for a jury as

there was no requirement to assess damages. The right to a trial by jury has long been a feature of defamation proceedings and was

expressly preserved by s. 48 of the Supreme Court of Judicature (Ireland) Act 1877 and while the right to trial by jury has been

removed in many areas of the law where once it was the norm, one of the few areas in which it has been retained is for the conduct

of defamation proceedings.

46. The assessment of damages in a High Court defamation action is and always has been quintessentially a matter for a jury. Even in

cases where liability is admitted, a jury determines the damages. The fact that the offer of amends procedure results in the

compromise of defamation proceedings actually commenced or obviates the necessity to issue defamation proceedings does not mean

that the determination of the sum to be paid by way of damages under the provisions of s. 23(1) of the Act of 2009 necessarily

involves a determination by a judge sitting alone. It is difficult to see any basis for a difference of approach between an action

compromised by an admission of liability but leaving over the assessment of damages to be determined by judge and jury and a

compromise of actual or potential defamation proceedings by the acceptance of an offer of amends.

47. One would have expected to see clear and express words used by the Oireachtas in this legislation if it had intended to remove

the core function of the determination of damages from the jury in cases such as this, being such a fundamental change. No such

provision has been included in the Act of 2009, unlike the provisions of s. 3 of the Defamation Act 1996 of the United Kingdom

referred to previously.

48. Accordingly, the phrase "the court" as used in s. 23(1)(c) means a jury in the context of the assessment of damages. Therefore,

the respondents herein are entitled to have the damages to which they are entitled assessed by a jury, subject, of course, to

appropriate directions as to the discount to be provided to the appellants having regard to the fact of the making of the offer of

amends as described by O'Malley J. in the case of Christie.

49. 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 provisions of the Act of 2009 how it

was envisaged that the new procedure was meant to work in practice to achieve its objective. It is surely desirable that where

changes are proposed which may have very far reaching effects, that they should be carefully tailored to achieve their intended

object and be clearly expressed. These proceedings, on an issue of statutory interpretation of one provision, which could have been

resolved decisively one way or another by a single phrase, have been the subject of hearings in three Courts over a period of more

than two years and cannot claim to have resolved all the issues raised by the limited statutory delineation of a novel procedure,

having potentially far reaching impact on defamation proceedings. If this matter is to be the subject of further review or amendment it

would be very desirable that consideration is given to setting out very clearly the mechanism envisaged and how it would function in

a range of different circumstances.

50. In all the circumstances and for the reasons set out above, the appeals will be dismissed.