Court Of Appeal Substantially Reduces Award Of Damages For Defamation From €10 Million To €250,000

The Court of Appeal, in the landmark judgment of Kinsella v Kenmare Resources plc & Anor (1) delivered on 28 February 2019, has set aside an award of damages of €10 million as being disproportionate, unjust and unfair in the circumstances. This had been the highest award of damages for defamation in Ireland until it was set aside. The Court of Appeal substituted the original jury award of €10 million (€9 million in compensatory damages and €1 million in aggravated damages) for an award of compensatory damages of €250,000.

Matheson was instructed by the Defendants in relation to the appeal.

Facts

In 2010, a High Court jury found a press release issued by Kenmare Resources plc to be defamatory of the plaintiff. The jury awarded the plaintiff €9 million in compensatory damages and €1 million in aggravated damages. Kenmare appealed the jury determination on a number of grounds, including that the damages awarded to Mr Kinsella were so unreasonable as to be incapable of being upheld on appeal. While the Court considered four distinct issues, (2) the present update deals with the question of damages only.

Decision

The Court of Appeal (Irvine, Whelan and Baker JJ) unanimously found the award of compensatory damages of €9 million was disproportionate, unjust and unreasonable in circumstances where no reasonable jury could have considered that an award of that magnitude was necessary to compensate the plaintiff in respect of the injury he sustained and in order that he might establish his reputation.

The Court of Appeal held that, notwithstanding the fact that an appellate court should be slow to usurp the role of a jury in assessing damages for defamation, the award of compensatory damages should be set aside, having regard to the following factors:

The award was approximately seven times greater than any previous award of damages made or upheld by the Supreme Court in a defamation action, with the award in Leech (3) being the highest at1.25 million. The award was disproportionate when considered against awards granted to individuals that have suffered the most severe personal injuries as a result of negligence, which serves as a good moral compass as to what is a proportionate and fair award for defamation. The9 million award, if allowed to stand, potentially would not even represent the ceiling to be applied in defamation actions. Awards of this magnitude for defamation had the potential to chill free speech and to be deemed offensive to public...