In the recent decision of Padraig Higgins v Irish Aviation Authority  IEHC 245 , Moriarty J considered whether pursuant to Section 23(1)(c) the plaintiff was entitled to have damages determined by a jury.
This case concerned a claim by the plaintiff in respect of three emails alleged to have been sent by a member of the Irish Aviation Authority (‘IAA’) in June and July 2013.
The plaintiff issued a plenary summons on 16th April 2014 and a statement of claim was delivered on 1st July 2014. On 25th May 2015 the defendant made an unqualified offer to make amends in accordance with section 22 of the Defamation Act 2009 (‘the 2009 Act”). The plaintiff accepted this by letter dated 22nd June 2015.
On 13th July 2015 the defendant specified details of their offer to make amends in accordance with Section 22 of the 2009 Act. This offer comprised of an offer of a sum of money, draft apology (with proposal to circulate) and an offer to pay the plaintiff’s legal fees to date which would be taxed in default of agreement. The parties however could not reach an agreement and the plaintiff issued a motion seeking directions pursuant to Section 23 of the 2009 Act to have a judge and jury to have the plaintiff;s claim with a view to assessing the damages together with the adequacy of the measures taken by the Defendant to ensure compliance with its offer to make amends.
A definition of “Court” is not defined in the 2009 Act although its meaning is set out in the context of specific sections of the 2009 Act. The plaintiff submitted that in the context of Section 23(1) the reference to the “High Court” and “the court” means the jury if the High Court is sitting with a jury. The defendant contended that the section refers to a judge sitting alone.
The Plaintiff submitted that there had been no determination to date as to whether a plaintiff had a right to a jury trial in order to have damages assessed under Section 23 of the 2009 Act. Counsel referred to the case of Christie v TV3  IEHC 694 where O’Malley J sat alone in a defamation action where there was no agreement as to the amount of damages payable following an offer to make amends. Here the plaintiff had elected to have the matter heard by a judge sitting alone.
The Plaintiff made reference to the long standing rule that “the assessment of damages is peculiarly the province of the jury in an action for libel” as stated in Davis v Shepstone (1886) 11 App. Cas. 187. This rule was subsequently confirmed in de Rossa v Independent Newspapers plc  4. I.R. 432 where Hamilton CJ stated that the assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not altered by the provisions of the Courts Act 1988 (provides that certain actions such as damages for personal injuries should not be tried by a jury). The plaintiff also referred to the case of Hill v Cork Exminder Publications Ltd  4 I.R. 219 where Murphy J held that “..A special status attaches to an award for damages for defamation as determined by a jury.…”.
The Plaintiff further submitted that the right to a trial by jury in a defamation action cannot take place by a judge alone without the consent of the parties. In Lennon v Health Service Executive  IECA 92 Hogan J held that the High Court had no jurisdiction to dilute the plaintiffs right to a trial by jury in respect of a defamation action.
The Defendant contended that the right to a trial by jury wasn’t an absolute right which was emphasised by Clark J in Bradley and ors v Maher  IEHC 389. They referred extensively to the work of Cox and McCullough, Defamation Law and Practice (Clarus Press, 2014) and submitted ultimately that the legislative intent can only lead to the conclusion that a decision on damages following an offer to make amends, in the absence of an agreement between the parties, was to be made by a judge alone and not a judge and jury. Counsel also submitted that there were a number of instances in the 2009 Act generally where the term “the High Court” used in isolation cannot reasonably be construed as involving a jury and therefore there was no reason why the use of the term in Section 23(1)(c) must necessarily be taken to refer to a judge and jury. Given that there was no role for a jury in the consideration of damages or costs, the Defendant submitted that there was no role for a jury under Section 23(1)(c) in the consideration of the adequacy of measures taken to ensure compliance with the terms of the offer made.
The Court summarised that the key issue for determination was whether in circumstances where an offer to make amends had been made and accepted pursuant to Section 22 of the 2009 Act but the parties were unable to reach agreement as to the issue of quantum of damages or costs, whether there was an entitlement under Section 23(1)(c) to a jury trial? Moriarty J summarised both the plaintiff and defendant submissions and referred to a number of cases including Lennon, Kerwick v Sunday Newspapers Ltd. (High Court, 10th July 2009), Brady v Maher  IEHC 389
Moriarty J held that 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), the plaintiff was entitled to have his damages assessed by a jury, rather than by a judge sitting alone, should he wish to do so.