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23rd
June 2005, The Scotsman
THERE are many fine things to come out of Ireland - Brian O'Driscoll,
The Corrs and a good pint of Guinness, for example - but a letter
from a firm of solicitors in Ireland threatening libel action,
well that is about as welcome as a Scot in the Lions Test team.
You see, libel awards in Ireland are out of control. The awards
are similar to the position that existed in England, before
the English Courts realised that the awards that juries were
granting were completely disproportionate to the damage done
to the reputation of the individual libelled. As a result of
this, a new regime was introduced whereby juries were given
direction by the trial judge to compare the award with awards
made in personal injury cases. For example, if an individual
lost a leg in a road traffic accident, would it be the same
as a newspaper wrongly accusing him of being a rapist? Consequently,
in England, the largest likely pay out for injury to feelings
would now probably be around the £250,000 mark.
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In
an attempt to bring English reasoning to Ireland, Independent
News and Media, the publishers of the Sunday Independent in
Ireland, challenged through the European Courts a jury award
of £300,000. The newspaper had published a story, which
claimed that a politician, Mr de Rossa, had been involved in
or tolerated serious crime and had supported anti-Semitism and
violent communist oppression. The European Court was having
none of it. They held that there had been no violation of the
newspaper's rights to freedom of expression as a result of the
high jury award. Since Irish law required the jury awards in
libel cases to be proportionate and because the Trial Judge's
directions to the jury on the issue of damages was adequate
then that was sufficient in law.
The BBC tried a similar approach back in 2000. There a trial
judge awarded total damages of £178,000 against the BBC
following a story concerning allegations of bad practises at
a Carluke nursing home. The Court of Appeal held that they did
not find comparisons with personal injury awards particularly
helpful or useful, since every case of defamation was unique
in relation to both the content of the slander and its effect
upon the victims. |
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In fact, if anything the Court held that the awards in personal
injury cases were, in fact, too low. Scottish judges, in fact,
adopt what has been referred to as a "broad brush" approach
when it comes to assessing damages in relation to libel actions.
So where does this leave us? It may well mean the English courts,
by introducing their personal injury comparisons, have shot
themselves in the foot. The days of the awards of ridiculously
high damages in England are gone. That may not be the case in
Ireland and in Scotland. With the prospect of larger awards
in Scotland, perhaps Scottish courts will get an influx of libel
cases. |
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