First Previous (PART 3 Defences ) Next (PART 5 Criminal Liability )

31 2009

Defamation Act 2009

PART 4

Remedies

Declaratory order.

28 .— (1) A person who claims to be the subject of a statement that he or she alleges is defamatory may apply to the Circuit Court for an order (in this Act referred to as a “ declaratory order ”) that the statement is false and defamatory of him or her.

(2) Upon an application under this section, the court shall make a declaratory order if it is satisfied that—

(a) the statement is defamatory of the applicant and the respondent has no defence to the application,

(b) the applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement, and

(c) the respondent failed or refused to accede to that request or, where he or she acceded to that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.

(3) For the avoidance of doubt, an applicant for a declaratory order shall not be required to prove that the statement to which the application concerned relates is false.

(4) Where an application is made under this section, the applicant shall not be entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates.

(5) An application under this section shall be brought by motion on notice to the respondent grounded on affidavit.

(6) Where a court makes a declaratory order, it may, in addition, make an order under section 30 or 33 , upon an application by the applicant in that behalf.

(7) The court may, for the purposes of making a determination in relation to an application under this section in an expeditious manner, give directions in relation to the delivery of pleadings and the time and manner of trial of any issues raised in the course of such an application.

(8) No order in relation to damages shall be made upon an application under this section.

(9) An application under this section shall be made to the Circuit Court sitting in the circuit where—

(a) the statement to which the application relates was published, or

(b) the defendant or one of the defendants, as the case may be, resides.

Lodgment of money in settlement of action.

29 .— (1) In an action for damages for defamation the defendant may, upon giving notice in writing to the plaintiff, pay a sum of money into court in satisfaction of the action when filing his or her defence to the action.

(2) A payment to which this section applies shall be deemed to be a payment under such rule of court for the time being in force as provides for the payment into court of a sum of money in satisfaction of an action for damages for defamation.

(3) Where a payment to which this section applies is made, the plaintiff in the action concerned may accept the payment—

(a) in accordance with the rule referred to in subsection (2), or

(b) inform the court in which the action was brought, on notice to the defendant, of his or her acceptance of the payment in full settlement of the action.

(4) The defendant shall not be required to admit liability in an action for damages for defamation when making a payment to which this section applies.

Correction order.

30 .— (1) Where, in a defamation action, there is a finding that the statement in respect of which the action was brought was defamatory and the defendant has no defence to the action, the court may, upon the application of the plaintiff, make an order (in this Act referred to as a “ correction order ”) directing the defendant to publish a correction of the defamatory statement.

(2) Without prejudice to the generality of subsection (1), a correction order shall—

(a) specify—

(i) the date and time upon which, or

(ii) the period not later than the expiration of which,

the correction order shall be published, and

(b) specify the form, content, extent and manner of publication of the correction,

and shall, unless the plaintiff otherwise requests, require the correction to be published in such manner as will ensure that it is communicated to all or substantially all of those persons to whom the defamatory statement was published.

(3) Where a plaintiff intends to make an application under this section, he or she shall so inform—

(a) the defendant by notice in writing, not later than 7 days before the trial of the action, and

(b) the court at the trial of the action.

(4) An application under this section may be made at such time during the trial of a defamation action as the court or, where the action is tried in the High Court sitting with a jury, the trial judge directs.

Damages.

31 .— (1) The parties in a defamation action may make submissions to the court in relation to the matter of damages.

(2) In a defamation action brought in the High Court, the judge shall give directions to the jury in relation to the matter of damages.

(3) In making an award of general damages in a defamation action, regard shall be had to all of the circumstances of the case.

(4) Without prejudice to the generality of subsection (3), the court in a defamation action shall, in making an award of general damages, have regard to—

(a) the nature and gravity of any allegation in the defamatory statement concerned,

(b) the means of publication of the defamatory statement including the enduring nature of those means,

(c) the extent to which the defamatory statement was circulated,

(d) the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement,

(e) the making of any offer to make amends under section 22 by the defendant, whether or not the making of that offer was pleaded as a defence,

(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement,

(g) the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement,

(h) evidence given concerning the reputation of the plaintiff,

(i) if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of the defamatory statement, the extent to which that defence is successfully pleaded in relation to the statement,

(j) if the defence of qualified privilege is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation or contradiction, and

(k) any order made under section 33 , or any order under that section or correction order that the court proposes to make or, where the action is tried by the High Court sitting with a jury, would propose to make in the event of there being a finding of defamation.

(5) For the purposes of subsection (4) (c), a defamatory statement consisting of words that are innocent on their face, but that are defamatory by reason of facts known to some recipients only of the publication containing the defamatory statement, shall be treated as having been published to those recipients only.

(6) The defendant in a defamation action may, for the purposes of mitigating damages, give evidence—

(a) with the leave of the court, of any matter that would have a bearing upon the reputation of the plaintiff, provided that it relates to matters connected with the defamatory statement,

(b) that the plaintiff has already in another defamation action been awarded damages in respect of a defamatory statement that contained substantially the same allegations as are contained in the defamatory statement to which the first-mentioned defamation action relates.

(7) The court in a defamation action may make an award of damages (in this section referred to as “ special damages ”) to the plaintiff in respect of financial loss suffered by him or her as a result of the injury to his or her reputation caused by the publication of the defamatory statement in respect of which the action was brought.

(8) In this section “ court ” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.

Aggravated and punitive damages.

32 .— (1) Where, in a defamation action—

(a) the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement, and

(b) the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement,

the court may, in addition to any general, special or punitive damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as “aggravated damages”) of such amount as it considers appropriate to compensate the plaintiff for the aggravation of the said injury.

(2) Where, in a defamation action, the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement and it is proved that the defendant—

(a) intended to publish the defamatory statement concerned to a person other than the plaintiff,

(b) knew that the defamatory statement would be understood by the said person to refer to the plaintiff, and

(c) knew that the statement was untrue or in publishing it was reckless as to whether it was true or untrue,

the court may, in addition to any general, special or aggravated damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as “punitive damages”) of such amount as it considers appropriate.

(3) In this section “court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury.

Order prohibiting the publication of a defamatory statement.

33 .— (1) The High Court, or where a defamation action has been brought, the court in which it was brought, may, upon the application of the plaintiff, make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion—

(a) the statement is defamatory, and

(b) the defendant has no defence to the action that is reasonably likely to succeed.

(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement to which the order relates.

(3) In this section “ order ” means—

(a) an interim order,

(b) an interlocutory order, or

(c) a permanent order.

Summary disposal of action.

34 .— (1) The court in a defamation action may, upon the application of the plaintiff, grant summary relief to the plaintiff if it is satisfied that—

(a) the statement in respect of which the action was brought is defamatory, and

(b) the defendant has no defence to the action that is reasonably likely to succeed.

(2) The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.

(3) An application under this section shall be brought by motion on notice to the other party to the action and shall be grounded on an affidavit.

(4) An application under this section shall not be heard or determined in the presence of a jury.