Photo caption: The delegation to meet with Minister Browne to discuss damages awarded in defamation cases were (from left): Neil McDonnell, ISME; Vincent Jennings CSNA; James Coghlan, Astropark Ltd; Stuart Lodge and Liam Gleeson, Lodge Service
Damages should be capped at €75,000
Dublin 12th April 2024: An ISME and CSNA delegation has met with Minister of State at the Department of Justice, James Browne TD, as the Department prepares to publish the legislation amending the Defamation Act 2009. Both of the business representative bodies have called on Minister Browne and the Government to introduce an immediate cap for serious defamation.
Government must introduce an immediate cap of €75,000 for serious defamation. The time is now.
The Supreme Court has now confirmed that capping of damages is constitutional and that this is exclusively a matter for the Oireachtas.
As the level of damages recommended by the Supreme Court in Higgins -V- DAA is excessive, inconsistent with the Judicial Guidelines on serious injuries, and is almost certainly repugnant to Article 10 rights under the European Convention on Human Rights, the cap must be introduced.
On occasion, higher damages should be awarded, for instance where a plaintiff has lost their job as a result of a defamatory allegation; or where a business has had its reputation damaged as the result of a defamatory allegation (e.g. Dominion Voting Systems v. Fox News). However, these instances should be dealt with on a “vouched” basis, similar to special damages in personal injuries cases. Awards of up to twice the vouched loss should be awardable by the Courts. This is consistent with legislative provisions under the Unfair Dismissals Act 1977.
The adoption of the anti-SLAPP Directive (which protects journalists and media outlets from aggressive litigation) by the EU Parliament, means that Ireland must introduce robust and meaningful protections for defendants, as well as significant penalties for offending plaintiffs. Compensation for defendants must be equivalent to three times the damages sought by the plaintiff, or the maximum jurisdiction of the Court in which the claim is brought, whichever is the greater. This level of award is consistent with legislative provisions under the Protected Disclosures Act 2014.
Neil McDonnell, CEO of ISME said: “Any reform to the Defamation Act without addressing legal costs will be almost meaningless. As we have previously advised the Department of Justice, the real power in defamation litigation is not the ability to exact damages from defendants, it is the ability to inflict large costs upon them, without any hope of recovery if the defendant wins. The Government must therefore introduce legislation giving effect to the minority report of the Review of the Administration of Civil Justice within the lifetime of the 33rd Dáil.
Vincent Jennings, CEO of the Convenience Stores & Newsagents Association (CSNA) said: “CSNA welcomes the proposed amendments to the Defamation Act that will prevent frivolous and vexatious claims against our members. Unless serious harm has been suffered by a customer there should never be opportunities for chancers to enrich themselves. Asking for a receipt or proof of payment or refusing to accept a particular payment type should never be considered “actionable””.
Stuart Lodge, CEO of retail security company Lodge Service International said: “Over the past fifteen years the situation, in regard to the litigation in Ireland, has become progressively worse and has now deteriorated to an extent that we are seriously questioning whether it is still viable to conduct business here. We also believe that we are not alone; and this claims culture is deterring other suppliers and investors from doing business in Ireland. We also propose that retailers and their representatives should be able to question customers in relation to their purchases or activities in their stores, without fear of actionable cases been taken against them.”
Due to a concerning increase in the use and abuse of “analogous proceedings” such as complaints under the Equal Status Acts, 2000 – 2015, ISME and CSNA are seeking the extension of anti-SLAPP protections to proceedings brought in the Workplace Relations Commission (WRC). Furthermore, we believe that plaintiffs under the Equal Status Acts, 2000 – 2015 should be required to lodge a deposit of €500 with the WRC before it hears a complaint under this Act.
Despite the fact that complaints about lawyers to the Legal Services Regulatory Authority enjoy absolute privilege under the Legal Services Regulatory Act 2015, this has not stopped some lawyers threatening defamation proceedings, and having complaints withdrawn as a result. Therefore, the anti-SLAPP provisions in the reform bill must be explicitly extended to protect complainants to the Legal Services Regulatory Authority (LSRA).
