By John Ringrose, Solicitor, Litigation Department
The largest libel award in the history of the State was recently made when Donal Kinsella, a former director of Kenmare Resources, was awarded €9 million in compensatory damages and €1 million in aggravated damages. The award was made by a High Court jury after it found in his favour in a defamation action brought against his former employer.
The case arose from a press release issued by Kenmare Resources following an “incident” on a business trip in Mozambique. The director sleepwalked naked through the corridor of a mining camp dormitory and opened the doors of a number of colleagues’ bedrooms, including that of a female colleague. The press release called for the resignation of Mr Kinsella as the Chairman of the company’s audit committee because of the incident.
The jury unanimously decided that the press release, which had not detailed the sleepwalking incident, had implied that Mr Kinsella had made inappropriate sexual advances on his colleague.
An independent internal inquiry had previously cleared Mr Kinsella of any sexual impropriety.
Mr. Justice De Valera, the judge presiding in the Kinsella case, noted that the sum award by the jury was ‘unusally large’. Furthermore this jury award has been viewed by many legal commentators as disproportionately excessive, being over five times greater than the previous highest libel award. It is also believed to be the largest payout in European libel history. Kenmare Resources are appealing the award.
The Legislation Governing Defamation in Ireland
The law of defamation in Ireland is currently governed by the Defamation Act 2009 which introduced a number of key changes to the old rules applying to defamation.
The 2009 Act came into force on 1 January 2010 and applies only to defamatory statements made thereafter. The offending press release in Kinsella was published in 2007 and accordingly the case was heard under the old rules (although heard in November 2010).
Under the old rules, Irish juries are normally only given some basic and limited guidance by the judge in assessing damages. Typically, juries are simply told that an award of damages should represent fair and reasonable compensation for the injury suffered by the plaintiff. However, it is not allowable for actual figures to be mentioned to juries by the judge or for clear and specific guidelines with regards to assessing damages to be given to juries.
One change introduced by the 2009 Act, which is particularly relevant, is provided for in Section 31 of the Act, which deals with the assessment of damages. It requires that a judge must provide a jury with specific guidelines and criteria in order to aid them in assessing damages. Section 13 of the Act, on appeal, gives the Supreme Court the power to substitute an award of damages granted by a jury in the High Court with such amount as it considers appropriate.
While it remains to be seen how the new procedure will operate in practice. It is expected that the new requirement that the judge shall give directions to the jury in relation to the matter of damages will make it less likely that a jury will make such an excessive award as was made in the case of Kinsella v Kenmare.
Nevertheless it will still be open to juries to award large sums in damages to defamed plaintiffs in appropriate circumstances and the Kinsella case clearly highlights the importance of checking very carefully the wording of any public communications or press releases about sensitive company issues before they are published.
For further information contact John Ringrose, Solicitor, or Robert Bourke, Partner, of our Litigation Department.
- Largest libel award in Ireland awarded in November 2010 of €9 million in compensatory damages and €1 million in aggravated damages.
- The case was heard under the old defamation rules in which the jury was only allowed general directions from the judge to quantify damages.
- Defamatory statements made after 1st January 2010 now come under the Defamation Act 2009 which provides for more detailed direction to the jury on the quantum of awards.