A €1.87m libel award to communications consultant Monica Leech was so disproportionately high that it should be set aside, the Supreme Court was told yesterday.
Lawyers for Independent Newspapers, against which a High Court jury made the award in June 2009, said the "chilling effect" on freedom of the press had to be taken into account is assessing such awards.
Ms Leech's lawyers said the award should stand given the serious nature of the defamation and also argued compensatory damages embrace a great variety of elements.
A three-judge Supreme Court yesterday began hearing the appeal which continues today.
The case arises out of a series of 10 articles in November /December 2004, in the Evening Herald which is published by Independent Newspapers (Ireland) Ltd.
Ms Leech claimed they meant she was having an extra-marital affair with then Environment Minister Martin Cullen which was strongly denied.
The jury found they did wrongly infer she had been having an affair and awarded her what was the highest ever libel award at that time.
The case was appealed by Independent Newspapers which the Supreme Court ordered should pay €750,000 to Ms Leech pending determination of the appeal. Opening the appeal, Cian Ferriter, for Independent Newspapers, said the appeal court must address where this case lay on the scale of gravity of defamations generally.
Independent Newspapers submit that apart from the fact that it was only compensatory and not aggravated/exemplary damages the jury was asked to deal with, the defamation must be located on the scale of gravity of defamations generally.
While the jury determined the Herald articles meant Ms Leech was having an extra-marital affair with a minister, and while undoubtedly serious, it did not come within the category of "the grossest and most serious libels" which have come before the courts, as had been identified in previous cases.
Counsel also argued there were valid questions of public interest posed in the Herald articles and which merited the "alternative meanings" defence which was run in the original trial by the paper.
Mr Ferriter also said while the Supreme Court has been reluctant to seek to benchmark libel awards with personal injury awards, it was his client's case that this cannot take place in a vacuum and the highest levels of awards in personal injury cases do provide a "helpful touchstone" in assessing proportionality.
He argued that the appeal court can, and ought in this case, have regard to the highest level of damages in personal injury cases.
There was further the wider social issue of the effect on the press generally of extremely large defamation awards, counsel said. The European Court of Justice had made clear that unpredictably large libel awards are considered capable of having a "chilling effect on press freedom" and therefore require most careful scrutiny.
Frank Callanan SC, for Ms Leech, urged the court to allow the award to stand over "a grotesque" allegation that a happily married mother-of-two had an affair and had done so for personal and commercial reasons.