Sorry is the hardest word

I heard a tabloid editor on the radio recently repeating the canard about newspapers being reluctant to apologise under the outgoing libel regime for fear of admitting liability. But to the best of my knowledge, it has not once happened in the history of Irish libel litigation that a newspaper which apologised in good faith had that apology used unfairly and damagingly in an ensuing trial. To the extent that apologies are sometimes deemed to have evidential value, this is invariably, at worst, a matter of confirming a wrong already admitted, which often allows the apology to be cited in mitigation. The real reason newspapers have been unwilling to apologise is that, because only a small number of plaintiffs have the inclination or means to go to court, some newspapers have an unofficial policy of toying with a writ to wear down the plaintiff's will. Even when they were manifestly in the wrong, such newspapers have brazenly pursued a policy of denial and delay in the hope that the complainant will fold. This happens in a surprising number of cases. The aforementioned tabloid editor also asserted that, in his experience "down at the ATM that is the Four Courts", plaintiffs only wanted money. It is true that, when a citizen has been tortured for several years by a newspaper refusing to restore his reputation, he is unlikely to settle the matter with a handshake on the steps of the court. But this does not mean he would not have settled at the outset without receiving anything other than nominal legal costs. I have personally sued newspapers on three occasions, each time receiving damages in the end. Early apologies would have ended all of these matter. In my experience, lawyers do not at the outset encourage clients to pursue damages, if only because this will look bad in court. Other than in cases where there is gross immediate damage, the first couple of letters tend to focus on obtaining an apology. Some newspapers have a policy of negotiating at this stage in reasonably good faith, but many simply refuse, point blank, to concede that the journalist might have got something wrong. In one instance in which I had been defamed (by a story printed in a Sunday newspaper), I was able, within a day or two, to provide a comprehensive rebuttal of the account published. The newspaper insisted on the veracity of its story, and this continued for over two years when, within days of the hearing, I supplied the newspaper with documentary proof of my account.

Altogether, the case cost the newspaper in excess of £100,000 in damages and costs, almost all of which could have been avoided by an early retraction. I have only had to go to court in one of the three cases. This was in 2002, in a well-publicised case against The Sunday Times. This defamation was so grotesque that anyone who examined the facts was unable to believe that the newspaper had been prepared to go to court. Although the allegations against me were extremely grave, I had at first requested an apology only. This was refused with menaces.

A third party, presumably sent as an emissary, told me that instructions were coming "direct from London" that the case be fought all the way as a deterrent to others who might think of suing the newspaper. The jury awarded me 84,000 euros in damages, but only after the foreman had dissuaded his colleagues from giving me three times that amount. He was concerned that, if such a high award was given, the Sunday Times would appeal to the Supreme Court and years would pass before I received anything. Whether the Defamation Act 2006 will change things remains to be seen. My guess is that the provision to enable apologies without admitting liability will have minimal effect. Most newspapers don't apologies because they just don't like doing it, and I don't see that changing.