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De Rossa libel award `penalises free speech'

INDEPENDENT Newspapers claimed in the Supreme Court yesterday that a jury award of £300,000 to former Social Welfare Minister Proinsias de Rossa in an action against the Sunday Independent was excessive and disproportionate to any damage done to his reputation.

On behalf of Mr de Rossa, it is submitted that there is no disproportion between the award and the ``gross and persistent'' libel committed against him. It is argued that to reduce the damages would constitute a failure to maintain the balance between freedom of speech and the vindication of his good name.

The award was made on July 31, 1997 at the conclusion of a libel action taken by Mr de Rossa following an article by Eamon Dunphy in the Sunday Independent on December 13, 1992.

It is submitted on behalf of the newspaper group that a jury in a libel trial should be referred to appropriate levels of damages for pain and suffering awarded in personal injuries cases by the superior courts and to previous libel awards.

During submissions for the newspaper, Michael McDowell SC said it was unsatisfactory that 12 people asked to adjudicate on a defamation and set compensation should be left in a position that the principles on which they award damages are not explained to them.

He said a jury should have regard to issues of proportionality in assessing damages. This would in no way detract from the valued function of a jury. It did a jury great injustice to suggest to them to ``do your best'' and use common sense, and that if they got the figure wrong it be left to the Supreme Court to put it right.

To have justice done, a jury should be able to address issues that were relevant and one of them was quantum (amount). A judge should give general guidance as to what was the scope of Irish compensatory damages.

Kevin Feeney SC, also for the newspaper, said while a court must always have regard to the facts of a case, it must also ensure that it identifies by its decisions what was the appropriate or permissible range of damages.

The present rules prohibited a jury from hearing anything other than references such as substantial, very substantial, moderate, large, significant, fair, reasonable or just in relation to damages. In real terms, that gave them no indication as to the damages they might award other than in most general terms.

Mr Feeney said it was important that a court could get guidance from personal injury awards of general compensatory damages.

In written submissions, Independent Newspapers referred to criteria in a number of libel actions in England and submitted that in applying them, no reasonable jury could have thought that an award of £300,000 was necessary to compensate Mr de Rossa, who continues to have a successful career as a politician and is a distinguished figure in his chosen field of endeavour.

It is also submitted that the award was so high as to amount to a restriction or penalty on the freedom of expression of the defendant and was therefore contrary to Article 10 of the European Convention on Human Rights.

It is submitted that under present practice, no one and certainly not a newspaper has any means of foreseeing the consequence of the exercise of the right of freedom of expression. Unpredictable awards, therefore, endanger freedom of the press to report fearlessly.

Independent Newspapers submits it is the absence of any specific guidelines from a judge or counsel which leads to excessive and unpredictable jury awards. The practice of not giving such guidelines violates the protection of freedom of expression guaranteed by the Constitution.

In submissions, on behalf of Mr de Rossa, it is claimed that while the implications of the European Human Rights Convention are argued by the appellant and decisions of the Human Rights Court referred to, no decision was referred to which suggested that the sum awarded by the trial jury was excessive orimpermissible.

No request had been made to the trial judge to direct the jury in the manner now argued for, and no application was made to him for any ruling that the provisions of the Constitution required him to direct the jury on damages other than in the manner in which he did.

If it were the position that there was a conflict between the Irish constitutional position and the European Convention on Human Rights, the courts would be bound to apply the Irish Constitution.

Similarly, if a court were to find a provision not repugnant to the Constitution which was found possibly to be repugnant to the convention, it would be obliged to uphold the provisions for the purposes of its decision in the national courts and leave to whoever they might do so to seek, if they wished, a declaration that Irish law contravened the convention.

It is submitted that from an extract of a Supreme Court judgment in a previous libel case, Irish law did provide a requirement of proportionality, although of course in the context of acknowledged jurisprudence that it was the public through its participation as jury in the legal process which was best placed to set the basis standard in damages.

It is submitted that very substantial awards, including those of the magnitude of the sum in the present case or greater, may be necessary to protect the good name of the citizen whose protection was also enshrined in the Constitution. Implicit in any damages award in any case was the strain, anxiety and turmoil caused to the successive plaintiff in litigation by reason of the defendant's conduct.

Mr de Rossa also submits it is facile to suggest that an award of £300,000 was not necessary to compensate him because he continued to have a successful career as a politician.

It is also argued that no true comparison exists between damages in personal injury cases and those in defamation cases. So far as comparison with personal injuries damages is concerned, it is submitted for Mr de Rossa that no true equation can be made between the function of damages in defamation cases and personal injuries cases.