A £300,000 award by a jury to the former social welfare minister, Mr Proinsias De Rossa, in an action against the Sunday Independent was excessive and disproportionate to any damage done to his reputation by an article in the newspaper, it was claimed by Independent Newspapers in an appeal to the Supreme Court yesterday.
However, in legal submissions on behalf of Mr De Rossa, it was submitted there was no disproportion between the award and the "gross and persistent" libel committed against him.
To reduce the damages would constitute a failure to maintain the balance between freedom of speech and the vindication of his good name, his lawyers argue.
The £300,000 award was made on July 31st, 1997, at the conclusion of a libel action taken by Mr De Rossa in relation to an article written by Mr Eamon Dunphy in the Sunday Independent on December 13th, 1992.
Independent Newspapers Ltd is appealing against the amount of the award and not against the finding of libel.
Independent Newspapers argued that a libel trial jury should be referred to appropriate levels of damages for pain and suffering awarded in personal injuries cases by the superior courts and to previous libel awards.
Mr Michael McDowell SC, for the group, said a judge should give general guidance about compensatory damages.
It did a jury great injustice to suggest to them to "do your best" and use common sense and that if they got the figure wrong it be left to the Supreme Court to put it right.
Mr Kevin Feeney SC, also for the group, said present rules prohibited a jury from hearing, in relation to damages, anything other than references such as "substantial", "very substantial", "moderate", "large", "significant", "fair" or "reasonable". That gave no indication other than in the most general terms what damages they might award.
Independent Newspapers said the application of criteria regarding certain libel actions in England would mean no jury could think an award of £300,000 was necessary to compensate Mr De Rossa and to re-establish his reputation. Mr De Rossa continued to have a successful career as a politician and was a distinguished figure in his chosen field of endeavour, it was submitted.
The group argued the size of the award was so high as to amount to a restriction or penalty on its freedom of expression, was contrary to the European Convention on Human Rights and also violated the newspaper's rights under the Constitution.
It also argued that the supposed rule of law or practise restraining counsel and judge in defamation trials from offering specific guidance on the appropriate level of general damages was unconstitutional.
Independent Newspapers submitted that under present practice no one and certainly not a newspaper had any means of foreseeing the consequence of the exercise of the right of freedom of expression.
Unpredictable awards, therefore, endangered freedom of the press to report fearlessly. This curtailed freedom of expression and the corresponding right of citizens to be informed.
The absence of any specific guidelines from a judge or counsel led to excessive and unpredictable awards and violated the protection of freedom of expression in the Constitution, it argued.
Lawyers for Mr De Rossa argued that while Independent Newspapers relied on European human rights legislation, no decision was referred to which suggested the sum awarded by the jury was excessive or impermissible.
No request had been made to the trial judge to direct the jury in the manner now argued for and no application was made for any ruling that the provisions of the Constitution required him to direct the jury on damages other than in the manner in which he did, the lawyers argued.
If there was a conflict between the Irish constitutional position and the European Convention on Human Rights, the courts would be bound to apply the Irish Constitution.
The respondent submitted that Irish law did provide a requirement of proportionality, although, in the context of acknowledged jurisprudence, it was the public through its participation as jury in the legal process which was best placed to set the standard in damages.
On behalf of Mr De Rossa, it is submitted that very substantial awards, including those similar to that made to the former minister, may be necessary to protect the good name of the citizen whose protection was also enshrined in the Constitution. Implicit in any damages award was the strain, anxiety and turmoil caused to the plaintiff in litigation by reason of the defendant's conduct.
Mr De Rossa also submits it is facile to suggest that an award of £300,000 was not necessary to compensate him and to re-establish his reputation because he continued to have a successful career as a politician and was a distinguished and respected figure in his chosen field.