€800K Defamation Award against Denis O’Brien: Fact specific or a major concern for defamation defendants?
Reading time: 4 mins
Two Northern Ireland based Human Rights Solicitors were each awarded in excess of €400,000 on 21 November, after a jury in the High Court in Dublin decided they had been defamed by a press release issued on behalf of Irish billionaire Denis O'Brien. The award is one of the highest defamation awards ever made in Ireland. It is also noteworthy for being the highest defamation award since the Supreme Court set out guidelines for appropriate damages in defamation cases in 2022. The award may have initially sparked concern in media circles (who would be the defendant in the majority of defamation cases), but with the dust settling on the award it may be turn out to somewhat of an outlier.
Background
The Solicitors in question, Darragh Mackin and Gavin Booth, claimed they were defamed by a press release issued in October 2016 by the PR spokesperson for Mr O'Brien, James Morrissey. The statement was in response to a report on the concentration of media ownership in Ireland, which was commissioned by then Sinn Fein MEP, Lynn Boylan. Mackin and Booth were the co-authors of the report. The offending words in the statement were “Sinn Fein/ IRA certainly got the report they paid for”. Mackin and Booth claimed that the press release meant that they were in the pay of the IRA, which was defamatory of them.
The proceedings lasted a significant number of years and involved many interlocutory applications. Ultimately the jury determined that the offending words meant that Mackin and Booth had acted for an unlawful organisation, namely the IRA. The jury proceeded to award each plaintiff €270,000 in general damages and almost €142,000 in aggravated damages, which was a total of €411,750 each. Aggravated damages are a type of damages awarded to plaintiffs where the defendant's conduct has worsened the injury caused to the plaintiff.
Fact Specific
There are a number of factors which indicate that an award of this size is unusual and is unlikely to be regularly repeated.
Identity of the Claimants
It is relevant that the two plaintiffs were Northern Ireland based Human Rights Lawyers who on their own evidence had advised parties from both communities in Northern Ireland. Evidence was given that alleged association with a particular terrorist organisation in Northern Ireland had resulted in lawyers being murdered in the past. The plaintiffs gave evidence of being concerned for their own safety and those of their families given the offending statement in the press release. If the authors of the report had a different background to the plaintiffs, then it is likely the damages would have been much reduced.
Identity of the Defendants
There was a certain irony in Denis O'Brien being a defendant to a defamation claim. Mr O'Brien once had a reputation as a serial litigant in defamation claims against the media, notwithstanding that he was at one stage a significant owner of media interests in Ireland. The jury would have been well aware of Mr O'Brien's status as a billionaire and his perceived ability to fund a sizable damages award. The jury may not have been particularly sympathetic to Mr O'Brien given his financial status and the context in which the offending statement was published in the press release.
The case arose from a Press Release and not a media publication
Most defamation claims are brought against the media in relation to their publications/ broadcasts. Defamation cases in relation to press releases are quite rare. It is perhaps not a coincidence that two of the largest awards ever in Ireland have been made in relation to press releases as opposed to mass media publications. In 2010, a jury awarded Donal Kinsella €10 million in relation to a press release issued by his then employer, Kenmare Resources. Ultimately, that award was reduced to €250,000 by the Court of Appeal, which was still a significant sum. The publishers of a press release would not have the same protections available to the media in defending a defamation claim. Most of the defences that O'Brien/Morrissey put forward had either been withdrawn or whittled away to nothing by the time the jury came to give its decision. The media would often rely on the defence of “fair and reasonable publication on a matter of public interest”, but this was not ultimately available to O'Brien and Morrissey. Certain media outlets were reported to have carried the press release in full but were never ultimately sued.
Supreme Court Guidelines/ Jury Awards
In 2022 the Supreme Court laid down non-binding guidelines in relation to defamation awards. Those guidelines put defamation damages into various categories from “moderate” (€0-50,000) to “exceptional” (over €300,000). In this case, the jury deemed the defamation of Mackin and Booth to be “very serious”, which the Supreme Court said should have a damages range of €200,000 to €300,000. While alleging that someone acts for an unlawful organisation is certainly not trivial, it is hard to square the jury's decision with that in the Gerry Adams case against the BBC last June. In the Adams case, the jury deemed the defamation of Mr Adams, who was accused of sanctioning the murder of a former Sinn Fein politician, as a “medium” defamation and awarded him €100,000.
The award against O’ Brien and Morrisey has led to further calls for the abolition of juries, which forms part of the Defamation Bill which is currently before the legislature. The abolition of juries will at least lead to a situation where we should have some explanation for how an award was arrived at. As regards the aggravated damages award, this seems to have arisen from the manner in which O'Brien/Morrissey stood over the statement throughout the proceedings and during Morrissey's evidence where he said that he stood over every word of the press release.
Conclusion
As with many jury awards in defamation cases, it is hard to know where this award leaves the general landscape of damages awards in defamation cases. In being the highest award in a defamation case in many years, it does appear to be an outlier. The reality is that most defamation cases settle for sums which are within the monetary jurisdiction of the Circuit Court i.e. less than €75,000. That remains the case even after the Supreme Court issued their non-binding guidelines in 2022. The press release in question was of a certain time and context. It seems unlikely that significant weight is going to be placed on the decision even by claimants who are trying to maximise the damages they might receive in a defamation claim, given that most of those cases will be against media defendants unlike this case. While the Supreme Court guidelines will remain, the Defamation Bill, if and when enacted, will address some concerns amongst potential media defendants about the risk of sizable and unpredictable awards in the future.