Defamation and Offers of Amends; a useful option if timed correctly

Under Section 22 of the Defamation Act 2009, a defendant who for any reason is unwilling or unable to defend a claim for defamation, has the option of making an offer of amends in writing.

The High Court recently considered the impact of such offers of amends in the care of Padraig Higgins v The Irish Aviation Authority[1]. Mr Higgins, is a senior commercial airline pilot employed by Aer Lingus who initially took a claim for defamation arising out of the discovery of three defamatory emails.

Facts
In 2013, Mr Higgins was piloting a microlight aircraft from Italy to Ireland when he encountered poor visibility.  He carried out an emergency landing in Wales and damaged the nose wheel of the aircraft. The UK Civil Aviation Authority launched an investigation to ensure that all regulatory requirements relating to UK flights and airspace had been adhered to by Mr Higgins.

Subsequently, Mr Higgins made a data access request from both the UK and Irish Aviation Authorities. The documents that he received as a result included three emails suggesting that Mr Higgins did not have the appropriate licence or permission to fly the microlight aircraft from Italy to Ireland.

Timing
In December 2013, Mr Higgins sought an apology and compensation from the Irish Aviation Authority (IAA). He did not receive either and so he issued legal proceedings in 2014. As part of its defence, the IAA made a written offer of amends pursuant to s.22 of the Defamation Act 2009 and in June 2015 Mr Higgins accepted that offer. The parties could not agree on a sum of compensation so it fell to the High Court to determine the amount of damages that ought to be paid in such circumstances.

High Court
The first issue in the case was the format of the High Court hearing. The Plaintiff insisted that he was entitled to have damages assessed by a jury, rather than a judge sitting alone. The High Court ultimately agreed with that argument.

The Jury determined that Mr Higgins should be awarded €300,000 in general damages and a further €130,000 by way of aggravated damages. A 10% reduction was then applied to take into account the fact that the IAA had made an offer to make amends.

The Court Appeal
The IAA appealed the decision to the Court of Appeal on the grounds that the damages awarded were 'unreasonable, excessive and disproportionate' and that the reduction applied was "deficient".

The Court of Appeal considered the conduct of the IAA and noted that it had confirmed to Mr Higgins that upon completion of its investigation into the incident, it "did have not have any concerns" about him. Notwithstanding that statement, the IAA proceeded to instruct their solicitors to send a letter stating that they are vigorously defending the proceedings. The Court was critical of the IAA's delay of two years to make an offer of amends without any explanation, but nonetheless went on to make substantial reductions to the damages awarded to Mr Higgins.

The Court of Appeal held that €70,000 was appropriate compensation in respect of the reputational damage,  the distress and upset that Mr Higgins had suffered.

The Court of Appeal also determined that because of the delay in making the offer of amends and because of the failure to negotiate after the first offer of compensation, a reduced sum of €15,000 in respect of aggravated damages was appropriate.

Conclusion
This case highlights the importance of how an offer of amends can be a useful tool in defamation proceedings when deployed promptly and in good faith. That said, defendants in defamation cases must continue to tread carefully when they face the prospect of jury assessed damages.

Written by Killian O'Reilly 

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