The “Programme for Government 2025” identifies as one of its priorities the enactment of the Defamation (Amendment) Bill 2024 (“the Bill”). Among the most conspicuous provisions in the Bill are those proposing the abolition of juries in all High Court proceedings instituted after the date of its implementation, and those concerning SLAPP suits (strategic lawsuits against public participation).
The Bill also represents a significant legislative nudge to parties contemplating or resisting defamation claims to consider alternative dispute resolution, and is thus yet another indicator of the growing interest among stakeholders in the resolution of their disputes in a forum other than the Courts. But will, or should, parties and their advisors push to mediate claims of defamation?
‘Specified ADR Procedures’
Section 18 of the Bill provides for the insertion into the Defamation Act 2009 of a new Part 4B, which would require that a practising solicitor, before issuing defamation proceedings, inform clients of the availability of “specified ADR procedures”. This is a reference to the procedure by which the Press Council receives, hears and determines complaints concerning the conduct of its members, and to the “right of reply” procedure in s.49 of the Broadcasting Act 2009, by which the Broadcasting Authority of Ireland facilitates a person whose “honour or reputation” has been impugned by an assertion of incorrect facts or information in a broadcast.
This obligation arises only where the specified ADR procedures “are applicable to the medium of publication” involved: an acknowledgment that there are naturally instances in which defamatory comments are made by individuals other than journalists and broadcasters.
The obligation is stated, at s.34J(1), to be without prejudice to the Mediation Act 2017, with the result that there would be a dual requirement to comply both with the terms of s.34J of the Bill, as well as with s.14 of the 2017 Act (albeit only where the alleged defamation would be caught by the resolution procedures of the Press Council and Broadcasting Authority). Section 34J details the other matters in respect of which the solicitor is to advise, including the implications of availing of the specified ADR procedures, or not, and costs.
Under s.34K(1), a court may, on an application, or of its own motion, invite the parties to consider the specified procedures and provide the parties with information about them. In a nod to the Courts’ power under s.16 of the 2017 Act to invite parties to mediate, s.34K(4) states
The power conferred by subsection (1) is without prejudice to any other discretionary power which the court may exercise at any time during the course of proceedings with a view to facilitating the resolution of a dispute.
Implications as to Costs?
Lastly, s.34L sets out the factors a Court may consider in awarding costs where it has issued an invitation to avail of the specified ADR procedure. These are “any unreasonable refusal or failure by a party to consider using a specified ADR procedure” and “any unreasonable refusal or failure by a party to the proceedings to attend or engage” in such.
These provisions reflect the desirability of facilitating parties who wish to vindicate their position in an extra-curial forum. Since Hogan J described mediation in Lyons v Financial Services Ombudsman [2011] IEHC 454 as “a thousand times preferable than litigation” (at para 37) there have been developments which have highlighted the value placed on ADR, and mediation in particular, as a means of resolving disputes. Most notable in this regard is the 2017 Act, s.14 of which obliges solicitors to advise clients, prior to issuing proceedings, to consider mediation as a means of attempting a resolution, and in accordance with which a party may be penalised in costs where it unreasonably refuses to consider using mediation. That incentive would be buttressed in many defamation claims by the Bill, were it to be enacted in its current form.
Mediation: Not a Universal Solution
The perception of the value of mediation in resolving defamation claims is not, however, homogeneous. Note, for instance, the contrasting positions adopted by those stakeholders who made submissions to the Joint Committee as part of the pre-legislative scrutiny of the general scheme Bill. Whereas Mediahuis Ireland stated starkly that
Any legal practitioner with regular experience of defamation cases will attest that mediation is effectively unheard of as a means of resolving such disputes,
Dentons LLP, on the other hand, expressed the view that
In our experience mediation is particularly suited to defamation claims and can be a less costly and more effective means of resolving defamation disputes than court proceedings.
Mediation as Part of Your Toolkit
From this practitioner’s perspective, and from that of many colleagues, mediation can indeed be utilised to positive effect in defamation proceedings, particularly where defamation is one of a number of causes of action relied upon and where, owing to commercial and other sensitivities, privacy and speed of resolution are valued more than a public airing of the dispute.
Understanding the Mediation Process
To learn more about how defamation and other complex disputes can be resolved through mediation why not register for The Bar of Ireland’s forthcoming mediation conference? Focused on bringing practitioners and clients together to understand how mediation can be used as an effective and speedy response to conflict, the conference takes place in our dedicated ADR centre, the Dublin Dispute Resolution Centre, on Friday, 16th May.
The views expressed above are the author’s own and do not reflect the views of The Bar of Ireland.