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Keoghs and M&S bag big defamation win

Blogs28/11/2019

Defamation claims against retailers in Ireland are on the increase with excessive damages and costs often awarded.

However the successful defence of Fowler v Marks & Spencer (Ireland) Limited by Keoghs Corporate Risks Retail (represented by Miley & Miley in ROI) and Marks & Spencer has provided an important judgment in the fight against such claims. The judge at Dublin Circuit Civil Court not only described the claim as “completely over the top”, but warned that he would award costs against the plaintiff in future where there was no evidence of defamation.

The claim

The plaintiff alleged that she was lawfully visiting an M&S store in Dublin when she approached the checkout with her groceries, carrying an old reusable shopping bag. When the checkout operator asked whether she needed to scan the bag, the plaintiff responded that she had brought the bag with her. At this point the plaintiff stated that the defendant’s employee asked her to “prove it”, a conversation ensued and the store manager was called.

The plaintiff alleged that the employee’s conduct was malicious and, in front of other people waiting in the queue, left her shocked, embarrassed and humiliated, thus leading to her claim for defamation.

The defence

Liability was denied. The defendant’s version of events was that the employee asked the plaintiff if she needed to pay for the bag to which she replied that it was already hers, eliciting the response “okay I’ll take your word for it”.

When the cashier did not ask the following customer if she should scan his bag, the plaintiff drew attention to this. The defendant’s employee confirmed that she could identify from looking at his bag that it was old, which meant that, in line with relevant training, she did not need to ask the question. Conversely the plaintiff’s bag appeared to be new so she was asked.  The employee also rejected the allegation that she had stated “prove it”.

The judgment

The matter proceeded to trial on 18 November 2019, where Judge John O’Connor stated that a store checkout operator asking someone if they had paid for a bag did not give rise to a defamation action nor did becoming upset at such a question justify a claim.

The judge therefore dismissed the claim. Whilst not making an order for costs in this instance, he also warned that in future claims, where there was no evidence of defamation, he would award costs against the plaintiff.

Kendrah Graham, Keoghs Corporate Risks Legal Director, was delighted with the judgment saying; 

This is a fantastic result for our client and a move in the right direction for defamation claims which are notoriously difficult to defend in ROI. The judgment is particularly satisfying for the Keoghs retail team, and we hope there are many more such successes to come.