ANALYSIS:The Monica Leech libel award points to the need for urgent reform of our anomalous system of assessing damages, writes JAMES McDERMOTT.
GEORGE BERNARD Shaw once complained that the problem with newspapers is that they are “unable to discriminate between a bicycle accident and the collapse of civilization”. Yet when one considers our nation’s antiquated libel laws, and in particular the huge damages sometimes awarded, one cannot help but conclude that our juries do not always discriminate enough.
Take for example the award of €1.872 million against Independent Newspapers for falsely claiming in the Evening Herald in 2004 that PR consultant Monica Leech had been having an affair with Martin Cullen. While one readily accepts that such false allegations caused huge hurt, distress and embarrassment to both Leech and her family, the level of damages awarded is harder to comprehend.
The astronomical nature of the award is apparent when one considers that, according to Personal Injuries Assessment Board (PIAB) Book of Quantum, had Leech lost both her arms she could have expected damages of between €141,000 and €197,000, and had she lost both her legs, compensation of between €130,000 and €180,000 would have been considered appropriate.
And, of course, an award of damages in a personal injuries action can never restore a lost limb in contrast to a libel award, which is often a very effective means of restoring a person’s reputation.
So what should be done? The most urgent reform that is needed is that a trial judge should not simply leave the jury to their own devices to pick out of thin air the appropriate figure for damages, a process that was described by Lord Bingham, in a case involving the singer Elton John as leaving jurors “in the position of sheep loosed on an unfenced common with no shepherd”.
As is now the case in England, judges here should be allowed to offer general guidelines to the jury as to what level of damages might be appropriate in a particular case by, for example, referring to awards made in other libel actions or in personal injuries actions.
The necessity for this reform was highlighted in the successful action taken by Denis O’Brien against the Irish Mirror. In that case the jury were obliged to decide what an appropriate award of damages would be to compensate O’Brien for being falsely accused of making an improper payment to former government minister Ray Burke. In the absence of any guidelines from the trial judge the jury made an award of €250,000.
On appeal, the Supreme Court set aside this award on the basis that it was disproportionately high, taking the view that the libel against O’Brien was not among “the grossest and most serious libels which have come before the courts” and sent the issue of damages back to the High Court to be assessed by a second jury. However, back in the High Court this second jury, who could not be given guidelines on damages or even be told that the Supreme Court had set aside an earlier award of €250,000 for being disproportionately high, decided to award O’Brien €750,000.
When the inevitable appeal of this second award is heard by the Supreme Court, it is hard to see how they will be able to stand over it having previously decided that a figure three times lower was unacceptably generous, making a third visit back to the High Court inevitable. The case may literally never end.
This lack of guidance made available to juries in libel trials seems particularly unfair when one considers that in reaching its conclusion that a jury award is too high, the Supreme Court is itself entitled to refer to awards made in other cases. In fairness, it must be pointed out that one of the proposals in the Defamation Bill 2006 is that the trial judge should be allowed to direct the jury on the issue of damages.
However, newspaper editors would be well advised not to hold their collective breath on this one as the slow bicycle race that is the introduction of the Defamation Bill continues. And even if our nation’s legislators ever get around to enacting the Bill, it somewhat frustratingly provides little detail as to the exact nature of the guidance that should be given to jurors leaving this to be teased out in future litigation.
But why should reform stop at the issue of guidelines? Why not go a step further and remove the jury from the assessment of damages process entirely? After all, in a criminal trial the function of the jury is limited to deciding whether or not the accused is guilty of the offence charged. If it returns a guilty verdict it is the trial judge who decides on the appropriate sentence to be imposed.
It is hard to see why a similar approach could not be taken in libel cases so that the issue as to whether or not the plaintiff has been libelled by the defendant could remain within the exclusive preserve of the jury but that the size of any subsequent award of damages should be decided by the trial judge. The judge would have far greater expertise in this area and could be expected to produce a detailed written judgment outlining his reasons for making a particular award as opposed to a jury simply announcing a figure they deem appropriate.
Such a reform would also greatly facilitate the appellate courts as it would avoid a situation where the Supreme Court will now have to consider the appropriateness of the €1.872 million award to Leech in the absence of any indication as to the reasoning used by the jurors. This reform may well be welcomed by the jurors themselves who, in the absence of appropriate guidance, are ill-equipped to place a monetary value on something as intangible as a person’s damaged reputation.
An even more radical reform would be simply to remove the jury from the equation altogether and have libel cases heard by a judge sitting alone, as currently happens in the Circuit Court. Indeed, even in the High Court a judge sitting alone without the assistance of a jury currently hears the vast majority of civil cases.
Every day of the week High Court judges make decisions in areas such as immigration and asylum, judicial review and employment law which often have huge implications for the parties concerned but they are obliged to decide these cases on their own. Other than perhaps historical anomaly, it is hard to see why libel cases are seen as still requiring thze input of a jury particularly when one recalls that the Courts Act 1998 removed juries from the majority of tort actions precisely because of the indefensibly high awards being made.
But even if you subscribe to the view of Richard II that “the purest treasure mortal times afford is spotless reputation”, one has to accept that it has become virtually impossible to defend jury awards that more resemble lottery wins than appropriate compensation. With so much money at stake it is unsurprising that libel law has in Ireland largely been reduced to the plaything of the rich and influential and in the absence of an adequately funded system of legal aid in civil actions our libel laws will continue to remain for the most part inaccessible to the majority of our citizens.
And the threat of having to pay huge amounts of damages, as well as footing the bill for massive legal costs, will make newspaper editors nervous of engaging in investigative reporting of any kind.
James McDermott is a lecturer in law in the UCD school of law and a practising barrister