Monday 18 December 2017

Media organisations should benefit from TV3 decision, judge declares

The Four Courts, Dublin
The Four Courts, Dublin

Tim Healy

MEDIA organisations should get a benefit from the first Court of Appeal decision in relation to the "offer of amends" provision in the 2009 Defamation Act, a judge said.

The comment was made by appeal court judge Gerard Hogan who wrote this month's decision on the matter in relation to a case taken by a lawyer against TV3.

Solicitor David Christie was defamed by the TV station in a November 2013 news report which wrongly identified him as later-jailed lawyer Thomas Byrne who was before a court on fraud charges.  

Mr Christie had represented Mr Byrne and was filmed outside the Criminal Courts of Justice which he had been attending to represent his client.

TV3 made an "offer of amends" under Section 22 of the Defamation Act but because there was no agreement between the parties on what it should be, a High Court judge was asked to adjudicate on the matter.

Ms Justice Iseult O'Malley, now on the Supreme Court, assessed damages at €140,000. TV3 appealed on the basis that sum was too high.

In his decision earlier this month on behalf of the three-judge Court of Appeal, Mr Justice Hogan found while it was a serious defamation of Mr Christie, it was not at a level which would merit a starting point of €200,000 used by the High Court.

Certain factors had to be taken into account which took away from the seriousness of the defamation, he said.

These included the one-off nature of the broadcast, its relatively short duration, the failure to name Mr Christie and the lack of animus towards him.  There was also the fact that it was an obvious error which those closest to Mr Christie - his family, friends, work colleagues and clients - would surely know, he said.

The appropriate starting point for considering damages was, accordingly, €60,000.  Given the apology which TV3 did broadcast, the station was entitled to a substantial discount, bringing the actual award down to €36,000.

When the case returned to the appeal court on Thursday, Mr Justice Hogan said, in response to arguments from both sides about why they should get their costs, that this was the first time an appellate court had considered the (offer of amends) provisions.

The court's decision, he hoped would give "some guidance" to media organisations and they would "get a benefit" from having matters such as the terms and nature of an apology which should be given in such cases.

In its decision on the costs, the appeal court said it was making no order which means that both sides must pay the costs of the appeal.

The appeal court would not however interfere with an award of costs in the High Court to Mr Christie.

TV3 had been ordered to pay €70,000 to Mr Christie as the basis on which it was allowed appeal the High Court award of €140,000 to him for defamation.

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