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In the second of our blog posts concerning the Defamation Act 2009, we look at the various remedies available under the Act.

1. Declaratory Order

A new fast track remedy is now available under the Act whereby a person who claims to be the subject of a statement he or she alleged to be defamatory can apply to the Circuit Court for an order declaring that the statement is false and defamatory of him or her. Section 28(7) provides that the Court may, for the purposes of making a determination 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 an application. A successful applicant is not required to prove that the statement to which the application concerned relates to is false.

The Circuit Court will grant the 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 to that statement and (c) the respondent failed or refused to accede to that request or, where the respondent acceded to the request, failed or refused to give the apology, correction or retraction the retraction the same or similar prominence was given by the respondent to the statement concerned.

When an application is made for a declaratory order, the applicant is prohibited from bringing an action for damages or any other proceedings in relation to the defamatory statement. The Circuit Court has also power to make a correction order or an order preventing further publication of a defamatory statement.

An application for declaratory relied is brought by way of motion on notice to the respondent grounded on affidavit.

2. Correction Order

Under Section 30 of the Act, where there is a finding that the statement in respect of which the action brought was defamatory and the defendant has no defence to the action, the court may, upon application of the plaintiff, make an order directing the defendant to publish a correction of the defamatory statement.

The correction order will specify the (i) the date and time upon which, or (ii) the period not later than the expiration of which, the correction order will be published and in addition will specify (iv) the form, content, extent and manner of publication of the correction and require the correction to be published in a manner that will ensure it is communicated to all or substantially all of those persons to whom the defamatory statement was published.

Where a plaintiff intends to make an application fora correction order, he or she must inform the defendant in writing, not later than 7 days before the trial of the action and the court at the trial of the action.

3. Prohibitive Injunction

Under Section of the Act, the court can grant an injunction prohibiting the publication or further publication of the statement if in its opinion (i) the statement is defamatory and (ii) the defendant has no defence to the action that is reasonably likely to succeed.

4. Summary Disposal of the Action

Under Section 34, a plaintiff in an application for damages, can apply for summary relief if the court is satisfied that (a) the statement in respect of which the action was brought was defamatory and (b) the defendant has no defence to the action that is reasonably likely to succeed.

The court can also, upon the application of the defendant, dismiss the action of 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.

An application for summary disposal is brought by motion on notice to the other party to the action and grounded on affidavit and made before a judge in the absence of a jury.

5. Damages

Section 31 and 32 of the Act set out the area of damages and aggravated/punitive damages. Section 29 also provides that in an action for damages, the defendant can pay a sum of money into the court in satisfaction of the action in filing his or her defence to the action.

Either party under Section 31(1) can make submissions to the court in relation to the matter of damages.

In an action for defamation brought before the High Court, the judge will give directions to the jury in relation to the matter of damages. In making an award of general damages in a defamation action, regard will be had to all circumstances of the case.

In making an award of general damages, the court will 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 an 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) of 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
(k) any order made under section 333 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.

The court can also make an award of special damages to the plaintiff in respect of the 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.

Where, in a defamation action, the court finds the defendant liable to pay damages to the plaintiff and the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff, the court can also award the payment of aggravated damages. Where it can be shown that the defendant intended to publish the defamatory statement concerned to a person other than the plaintiff and knew the statement to be untrue or in publishing it, it was reckless, the court can also award punitive damages.

Finally under Section 38 of the Act, a defamation action must be brought within one year or such longer period as the court may direct not exceeding two years from the date on which the cause of action accrued.

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