Record €10m libel award against Kenmare Resources cut to €250,000

The Court of Appeal has cut a €10 million libel award – the highest ever in the State – against mining company Kenmare Resources to €250,000.

The €10 million award was made to its former deputy chairman Donal Kinsella by a High Court jury in 2010 against Kenmare and its chairman Charles Carvill. It related to a press release issued by the firm which the jury found was defamatory.

Kenmare and Mr Carvill appealed and, on Thursday, a three-judge appeal court said that, while Mr Kinsella was defamed, the award must be set aside as disproportionate, unjust and unfair.

Rather than remit the matter of damages for rehearing to the High Court, it decided €250,000 was just and fair compensation for the wrong visited on Mr Kinsella as a result of the press release.

The €10 million award – comprising €9 million for general damage and €1 million for aggravated damages – was made in 2010 after a jury found Mr Kinsella was defamed in the company press release issued on July 10th, 2007.

Kenmare had to pay €500,000 to Mr Kinsella as a condition of it being allowed to appeal the award.

The press release concerned an incident in Mozambique in May 2007, where a company board meeting was being held, when Mr Kinsella sleep-walked naked to the bedroom door of company secretary Deirdre Corcoran.

The press release referred to an “incident” and said Mr Kinsella was being asked to resign from the company’s audit committee.

An investigation by an independent solicitor on behalf of the company had found there was no conscious attempt on Mr Kinsella’s part to enter Ms Corcoran’s room and no improper motive in opening her door. Mr Kinsella was prone to sleep-walking.

Mr Kinsella sued the company and its chairman Charles Carvill.

In the Court of Appeal judgment, written by all three judges, Ms Justice Mary Irvine, Ms Justice Máire Whelan and Ms Justice Marie Baker, it found Kenmare had not established the existence of any circumstances which would justify the court interfering with the finding of the jury as to the meaning of the press release that it was defamatory.

The appeal court respects the role of the jury in coming to its determination.

It was satisfied there was no serious error in the manner in which the then High Court judge who heard the case, Eamon de Valera, charged the jury regarding the meaning of the press release.

It was satisfied, however, that the trial judge erred in law in concluding the publication of the release took place on an occasion of qualified privilege. Mr Kinsella had cross appealed on the issue of qualified privilege.

The appeal court was satisfied no reasonable jury could have considered the €9 million award of general damages was necessary to compensate Mr Kinsella for the injury he sustained and in order that he might re-establish his reputation.

It was further satisfied the manner of Mr Kinsella’s cross-examination did not justify the trial judge leaving open to the jury the possibility of the award of aggravated damages of €1 million which must also be set aside. Even if the question of aggravated damages fell to be considered by the jury, the award itself would have to be set aside as disproportionate.

“It was an award which no reasonable jury could have considered necessary to compensate Mr Kinsella for any additional hurt or upset caused by the manner in which he was cross-examined concerning the conversation which he maintained he had with Ms Corcoran while they were in a jeep in Moma, Mozambique.”

It did not follow that because the awards for general and aggravated damages were disproportionate, perverse and unfair that the court should set aside jury findings in relation to any other issue.

The options open to the court were a re-hearing on damages by the High Court or the re-assessing of the damages award by the appeal court itself.

The court considered in full the evidence of Mr Kinsella in relation to the effect of the publication of the press release on all aspects of his life and recognised that any ward of damages to be made in his favour must also be sufficient to vindicate his reputation.

Taking into account legal principles and other factors, and the awards of damages by appellate courts in other proceedings, particularly in defamation, the court concluded an award of €250,000 would be “just and fair” compensation.

The court said both defendants, Kenmare and Mr Carvill, will be jointly and severally liable for the award.

The issues of costs and other matters will be dealt with next month.