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

[Marsupial]

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

All falling under the umbrella of "human rights" - an exciting new area of lucrative enterprise for our bewigged friends. Some of the most successful of them appear to operate on both sides of the border.

 

[Leo]

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.

The challenge as I've heard it is a combination of the financial costs on top of the time required of staff, defending a case with little or no merit still costs a lot of money with little prospect of recovering legal costs.

 

[Itchy]

The challenge as I've heard it is a combination of the financial costs on top of the time required of staff, defending a case with little or no merit still costs a lot of money with little prospect of recovering legal costs.

I mean it's certainly a question for society as a whole. What's expedient for a party to an action is not necessarily conducive to a well functioning system (do we each have an ethical/moral duty to society as a whole or do we pursue utilitarianism?). Payout one vexatious claim and another will come down the tracks.

We see the same approach in other areas: Insurance companies paying out inflated claims in order to minimise their own costs (or at least knowing they can recover those costs from the honest policyholder), people convicted of defrauding the state continuing to receive state benefits, convicted criminals not being pursuing for the costs incurred in convicting them or of the damage inflicted during their crimes (convicted of burning out a Garda car during a riot, it's reasonable that you pay for it).

In the case of a vexatious defamation claim against a small shop owner, it's not that the bar is too low in order to bring a claim, it's more a free roll of the dice for someone with nothing to lose. So why address the former (which affects everybody), rather than the latter (which only affects the nefarious)?

 

[Leo]

In the case of a vexatious defamation claim against a small shop owner, it's not that the bar is too low in order to bring a claim, it's more a free roll of the dice for someone with nothing to lose. So why address the former (which affects everybody), rather than the latter (which only affects the nefarious)?

It one of the downsides of a legal system that provides access to all. If you've nothing to lose, you've nothing to lose.

 

[TomEdison]

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.

Even in arbitration proceedings, there still has to be an investigation in to the facts, and arguments about the applicable laws. In other words, a trial.

Because arbitrators can proceed with less formality, the trial may be shorter and therefore cheaper. But they can do this because the parties agree to it, because they want a less formal and cheaper proceeding. People can't be compelled to go to arbitration against their agreement, for the reason already mentioned; they have a consitutional right of access to the courts.

 

[T McGibney]

People can't be compelled to go to arbitration against their agreement, for the reason already mentioned; they have a consitutional right of access to the courts.

How then do sports law arbitration processes operate? Their whole function is to keep sports disputes out of the courts wherever possible. Without them, both the courts and sports schedules would be clogged with stupid cases.

 

[TomEdison]

When you enter a sporting event, or join a sporting league, or whatever, that is organised by the GAA, or the IAAF, or some such body, there's a contract between you and the organisers, one of the terms of which can be that both parties agree to submit disputes arising out of the the contract to binding arbitration. Similar terms are often included in, e.g. major construction contracts, and a variety of other types of contracts.

They generally can't be included in consumer contracts — using the small print to require consumers to surrender their right of access to the courts is generally seen as contrary to the unfair contract terms legislation that applies to most consumer contracts. So you can still bring your dispute about the dodgy toaster you bought, or the flight that you were bumped from, to the District Court small claims procedure.

Most defamations don't arise in the context of any contract at all, so a contractual pre-agreement to submit a defamation claim to arbitration isn't often a possiblity.

That's not to say that defamation claims can't go to arbitration — they can, but in most cases the agreement to submit them to arbitration arises after the alleged defamation has happened. The one exception that I know of is that newspapers that participate in the UK Independent Press Standards Organsation have a standing contractual obligation (to the IPSO) to accept the jurisdiction of IPSO's arbitration scheme, if a plaintiff wants to invoke it. But plaintiffs don't have to invoke it; they can go to court if they prefer.

One of the main attractions of arbitration is that proceedings are conducted in private. So the plaintiff can bring his claim without having the alleged defamation repeated and republished and brought to the attention of a wider and wider circle of people in the way that it would be in court proceedings. On the other side, the defendant benefits because, if they lose the action, they won't suffer reputational harm by becoming publicly known as the publisher of defamatory material — this matters if you're, e.g, a newspaper or a journalist with a reputation to guard.

The main downside to arbitration in defamation cases is that if what the plaintiff wants is public vindication of his character, he won't get it in arbitration proceedings, because nobody will get to hear about them. The other main downside is that somebody has to pay the arbitrator. A typical fee for professional arbitration is anywhere between €7,500 and €15,000, which is normally shared equally between the parties. That's a lot more that the court fees you have to pay to issue Circuit Court proceedings.

 

[T McGibney]

A typical fee for professional arbitration is anywhere between €7,500 and €15,000, which is normally shared equally between the parties. That's a lot more that the court fees you have to pay to issue Circuit Court proceedings.

This rather proves my point.

Has a modern era court case for defamation ever been settled for less than this, including fees on both sides?

At least an arbitration forum would temper the current scenario where you have to be either a pauper or a tycoon to afford to defend your good name against unjust defamation.

 

[T McGibney]

A typical fee for professional arbitration is anywhere between €7,500 and €15,000, which is normally shared equally between the parties. That's a lot more that the court fees you have to pay to issue Circuit Court proceedings.

This rather proves my point.

Has a court case for defamation ever been settled for less than this, including fees on but sides?

At least an arbitration process would presumably cure the current dysfunction where only a tycoon or a pauper can afford to challenge a defamation of their good name.