Defamation rate in Ireland 19 times higher than in England and Wales

[Brendan Burgess]

A very good opinion piece in today's Irish Times

Opinion: The law is deeply flawed when a retailer who asks a customer for ID can be sued for defamation

On legal advice, many retailers now operate a “no challenge” policy towards suspected shoplifters. This has to change

www.irishtimes.com

... Ireland has a higher number of defamation cases than England and Wales combined. In 2023, courts in England and Wales handled 250 defamation cases; Ireland had 360. That means Ireland has a defamation litigation rate 19 times higher than England and Wales on a per-capita basis. This is because our laws encourage litigation, not resolution.

...

Retailers, in particular, are being hit hard. Did you know that asking a customer at an off-licence for ID can be framed as a defamatory statement? Or asking for a till receipt? Or quietly refusing to accept a €50 that failed a counterfeit check? All have resulted in legal actions.

This is “retail defamation”: situations where businesses are sued (or threatened with being sued) for doing nothing more than protecting their stock or enforcing their legal obligations. The allegations are often minor, exaggerated, manufactured or plainly unfounded.

The cost of fighting them in court is so high that many businesses choose to settle, even when they have done nothing wrong. On legal advice, many retailers now operate a “no challenge” policy toward suspected shoplifters because it is far cheaper to let them steal than it is to defend a defamation action.

One major Irish grocery operator budgets losses through theft amounting to between €70,000 and €90,000 annually for each of its convenience stores and between €120,000 and €140,000 for its supermarkets.

 

[Itchy]

Retailers, in particular, are being hit hard. Did you know that asking a customer at an off-licence for ID can be framed as a defamatory statement? Or asking for a till receipt? Or quietly refusing to accept a €50 that failed a counterfeit check? All have resulted in legal actions.[...that have failed?]

the Irish Circuit Court has repeatedly held that it is not defamatory to ask a person who walks past the checkout in a retail store carrying goods, to produce a receipt for those goods, or to explain to a customer that a banknote cannot be accepted in payment if it does not appear to be valid legal tender.

Irish Defamation Laws on Brink of Imminent Reform

Significant change to Irish defamation law is quickly approaching with the publication of the Defamation (Amendment) Bill 2024. Our Commercial Disputes…

www.mhc.ie

There are obviously material differences in the law that explain the higher number of actions in E&W vs. Ireland. Those are substantially in favour of plaintiffs, in fairness, but reforms must tackle the actual flaws not the perceived ones.

 

[Brendan Burgess]

@Itchy

Yes, but that does not stop a solicitor from taking a case on behalf of a straw man and the retailer is forced to settle as it's cheaper than the costs of defending it.

On all these cases - defamation, personal injury etc, there should be a preliminary hearing. Unless there is very good reason not to, the judge should require the plaintiff to lodge the other side's costs in the court in the event of them losing. Or the solicitor should give an undertaking to pay the other side's costs.

We would have a lot fewer frivolous cases and the real cases could be dealt with a lot quicker.

 

[TomEdison]

On all these cases - defamation, personal injury etc, there should be a preliminary hearing. Unless there is very good reason not to, the judge should require the plaintiff to lodge the other side's costs in the court in the event of them losing. Or the solicitor should give an undertaking to pay the other side's costs.

But then only quite well-off people could bring court proceedings. There's a constitutional guarantee of access to the courts, and putting up barriers of this kind would probably be found to violate it.

(I'm a little bit leery of the claim that there were 250 defamation claims in England and Wales in 2023, versus 360 in Ireland; I'd like to see the sources for this (which the article doesn't offer). I'm wondering if maybe they're comparing High Court cases in England and Wales versus courts at all levels in Ireland, or something of the kind. A discrepancy like this can't be satisfactorily accounted for with a vague claim that "this is because our laws encourage litigation, not resolution" — particularly when the article goes on to make the point that in Ireland defendants largely settle these cases rather than fight them. If that's true, then Irish defamation cases are resolved rather than litigated.)

 

[Brendan Burgess]

But then only quite well-off people could bring court proceedings.

Not at all. People can bring court proceedings but the judge would filter out frivolous cases up front.

There will be a downside in that some people might not bring genuine cases. But it has to be balanced against the current crazy situation where people with no assets can bring cases and inflict a huge cost on the whole population at no risk to themselves.

 

[TomEdison]

But it has to be balanced against the current crazy situation where people with no assets can bring cases and inflict a huge cost on the whole population at no risk to themselves.

DENot at all. People can bring court proceedings but the judge would filter out frivolous cases up front.

How's a judge to know whether case is trivial unless there's a hearing at which the evidence is presented and the arguments are made, and then commented on by the other side?

In other words, what we call a trial?

There will be a downside in that some people might not bring genuine cases.

Which is quite a big downside. Deprivings people with legitimate claims of any remedy is a big problem. Selecting those people on the basis that they don't have a lot of money is . . . well, you can see where I'm going with this.

But it has to be balanced against the current crazy situation where people with no assets can bring cases and inflict a huge cost on the whole population at no risk to themselves.

Depriving people of access to the courts to vindicate their legal rights also inflicts a huge cost on the population — and not just an economic cost.

(I can't but note that the author of the article doesn't include your suggestion in the measures he wants.)

 

[T McGibney]

There is no earthly reason why a defamation dispute shouldn't have to pass through an arbitration process, like that operated by the GAA's Dispute Resolution Authority, before it reaches a courtroom.

 

[Lucius Lamb]

BBC Northern Ireland was sued successfully in recent months by Gerry Adams and the boyfriend of Aisling Murphy. Both cases were litigated in Dublin even though the TV programmes were made and broadcast in Belfast. I'm not questioning the legal jurisdiction of the Dublin courts but find it interesting that the lawsuits were not taken where the programmes were made.

 

[TomEdison]

There is no earthly reason why a defamation dispute shouldn't have to pass through an arbitration process, like that operated by the GAA's Dispute Resolution Authority, before it reaches a courtroom.

Inserting an extra layer of proceedings seems unlikely to reduce costs.

Unless you're going to have a rule that the arbitrator's decision is final and the claim cannot then be brought to court, in which case you're just substituting one forum for another — defamation actions are litigated in the Defamation Arbitration Tribunal rather than in the Circuit Court. Would this necessarily be any cheaper and, more to the point, would it save defendants any costs? They'd still have the dilemma of settling what they think is a baseless claim or of paying to defend it.

Plus you'd have the constsitutional objection — if the Tribunal behaves unlawfully there has to be recourse to the courts to vindicate the rights of someone who suffers from that. So instead of appeal against Tribunal decisions you'd have judicial review of those decisions, in much the way that decisions of An Bord Pleanála are reviewed in the High Court.

Specialist Tribunals are useful for disputes that involve specialist knowledge or expertise, like planning issues or sporting codes or construction contracts. But they don't generally deliver advantages in terms of identifying and weeding out worthless claims any more effectively than courts do. That's not what they're for.

BBC Northern Ireland was sued successfully in recent months by Gerry Adams and the boyfriend of Aisling Murphy. Both cases were litigated in Dublin even though the TV programmes were made and broadcast in Belfast. I'm not questioning the legal jurisdiction of the Dublin courts but find it interesting that the lawsuits were not taken where the programmes were made.

It's common for defamation proceedings to be brought in the jurisdiction where the alleged reputational harm was primarily suffered. Adams could legimately take his pick, I think, given that he was active in politics in both jurisdictions in Ireland and, indeed, an elected official in both. And for Ryan Casey it was a no-brainer.

 

[T McGibney]

Unless you're going to have a rule that the arbitrator's decision is final

The whole essence of arbitration is that the arbitrator's decision is final and can only be challenged on a point of law.

I cannot compute a scenario where this is more expensive than a court hearing.

 

[BIG-notorious]

Depriving people of access to the courts to vindicate their legal rights also inflicts a huge cost on the population — and not just an economic cost.

This is true.

But the Irish legal system as operating currently means there are very rarely any negative consequences to the plaintiff for taking an unsuccessful case- often a no-foal-no-fee arrangementmeans they don't even have to worry about their own costs. In contrast it's totally normal for a successful defendant to have to pay their own costs. Whether this is because the plaintiff is not a mark for a costs award in the rare case that one is made against them or because no order for costs is made is irrelevant from the defendants perspective. Losing or taking a dive by settling is cheaper than winning the fight.

The term is nuisance value, and everyone should be very concerned that the practice is so widespread that there's an industry term for it. I'm a past beneficiary myself as many years ago I went to my solicitor for assistance in recovering a few hundred pounds for damage to my vehicle and came out around 9 months later with a settlement for that damage plus costs plus injuries and psychological trauma I never even claimed to have which amounted to 10 times the actual value of my case. Like seriously, I went into the medical assessment with the defendant's doctor and the first thing I said to him was "I'm not claiming for personal injuries", but nevertheless.... It's beyond ridiculous.

Awarding costs against an unsuccessful plaintiff should be the default and usual decision, and it should also be the default and usual position (rather than a massive outlier) that a plaintiff should be required to lodge a sum to court as security for the defendants costs. It doesn't need to be massive, even it's effectively only a €1k refundable deposit to guard against wasting the time of the court and being an excessive drain on the economy this would eliminate many of the worst offenders from the legal system.

Which is quite a big downside. Deprivings people with legitimate claims of any remedy is a big problem. Selecting those people on the basis that they don't have a lot of money is . . . well, you can see where I'm going with this.

And yet there's an entire branch (OK, more like a twig) of law on the subject of impecunious plaintiffs....

https://www.williamfry.com/docs/default-source/reports/wf_litigation_security-for-costs.pdf?sfvrsn=0

It's common for defamation proceedings to be brought in the jurisdiction where the alleged reputational harm was primarily suffered.

You mean it's common for legal proceedings to be brought in the jurisdiction where the party initiating the proceedings perceives they have the best chance of success. It's called forum shopping.

 

[faketales]

Given self service machines ask if I want a receipt what would happen if I say no and they ask at the exit?

 

[Fortune]

We would have a lot fewer frivolous cases and the real cases could be dealt with a lot quicker.

We would also exclude genuine cases where the plaintiff can't afford the defendant's costs in advance.

 

[Leo]

Given self service machines ask if I want a receipt what would happen if I say no and they ask at the exit?

Same at the tills, you're usually offered a choice, It would be a matter of going back into the store where they can access all transaction records.

 

[Itchy]

Yes, but that does not stop a solicitor from taking a case on behalf of a straw man and the retailer is forced to settle as it's cheaper than the costs of defending it.

I makes no sense to settle a case that is without merit? Unless, of course, it's financially expedient in terms of time and attention. Which has a financial cost to society in and of itself. This article seems to be attempting to address the latter issue by increasing the bar that citizens have meet in order to vindicate their rights, which seems inherently wrong. Similarly, the Minister not approving the increases in personal injury awards diminishes the victims rights over everyone else, which also seems inherently wrong (but is expedient of course).

The new defamation Bill seems to have sensible reforms incorporated, though primarily focused on the proliferation of media and technology. In the era of social media, I think its good to have a high bar before people can feel confident enough to destroy someone's reputation. Not saying that our current system is appropriate but I do think you need a good rationale for diminishing citizen's legal protections. For example, claimants in England have to meet a "serious harm" test in order to bring a claim. It has reduced small and frivolous claims but has massively increased legal costs due to the complexity of demonstrating actual reputational harm. Like the trends in increasing court awards, maybe the legislation is not the actual issue?

 

[mathepac]

One major Irish grocery operator budgets losses through theft amounting to between €70,000 and €90,000 annually for each of its convenience stores and between €120,000 and €140,000 for its supermarkets.

Do they say if this for theft by staff / suppliers or from members of the public? Any indication of what percentage of the shops' turnover that is, just to be able to form a perspective?

 

[ClubMan]

Given self service machines ask if I want a receipt what would happen if I say no and they ask at the exit?

If this is a genuine concern on your part then the solution is simple - always take the receipt.

 

[Marsupial]

BBC Northern Ireland was sued successfully in recent months by Gerry Adams and the boyfriend of Aisling Murphy. Both cases were litigated in Dublin even though the TV programmes were made and broadcast in Belfast. I'm not questioning the legal jurisdiction of the Dublin courts but find it interesting that the lawsuits were not taken where the programmes were made.

Jury trials in the South for defamation; but not normally in the North. Make of that what you wish!

(I note that one newspaper report on the Adams defamation trial referred to a couple of the (starstruck) jurors gazing in open-mouthed admiration at the bearded one!)

 

[Corola]

Given self service machines ask if I want a receipt what would happen if I say no and they ask at the exit?

You would tell them you paid and to check the cameras. Then leave.

 

[MrEarl]

This tells me that the old ambulance chasers, within our legal profession, have added another string to their bow