THE DRINK IN the club house after a round of golf is a place of analysis – sometimes funny; sometimes, let’s be honest, mind numbingly boring but, rarely, of any lingering consequence.

In contrast, 21 days of golf-related deliberations of an altogether different kind took place last month when Mr Justice Herbert of the High Court sat in Court 10 of the Four Courts complex in Dublin listening to argument in Talbot v Hermitage Golf Club & Ors.

The claimant is a 75-year-old who is suing his former golf club, the club’s then handicap secretary and the Golf Union of Ireland in defamation claiming that, by lowering his handicap by 7.7 shots between 1999 and 2004, the club has damaged his reputation. The defendants argued that under GUI Rule 19 it had to reduce a handicap if it believed it was too high relative to the player’s ability.

The claimant, who represented himself, is seeking €10 million in damages (that is not a misprint). The damages in defamation are for reputational compensation and also in part for the claimant’s stress relating to his allegation that as a result of the handicap issue he was often left isolated and partner-less on competition days at the golf course – I know the feeling, I think it’s because of my hurley swing and wearing my socks outside my trousers.

Happily, Mr Talbot has told the media that, if successful, he will share the compensation with his extended family.

The amount also seems to be linked to a High Court case from November 2010 in which a former company executive was awarded a record €10 million damages by a High Court jury after they found he was defamed by a press release issued by the company about an “incident” in Mozambique in which he sleep-walked naked to a female colleague’s bedroom and made what the (defamatory) press release implied were “inappropriate advances”.

Winless

One or two sports-related defamation cases have come to the fore in recent times. A personal favourite is Dee v Telegraph Media Group Ltd (No 2) [2010] EWHC 924 (QB). In that case, the Daily Telegraph printed a short front-page story on Dee in April 2008, which began: “A Briton ranked as the worst professional tennis player in the world after 54 defeats in a row has won his first match.” The article also made reference to a fuller article in the sports section.

The essential thrust of the story, and one which numerous other media services also covered, was to point out that Dee had not won a single match during his first three years on the professional tennis circuit, touring at an estimated cost of £200,000 but noting that his dismal run had recently ended when he beat an unranked 17-year-old at a minor tournament in Barcelona.

Dee sued numerous media organisations for defamation, arguing that the coverage, in tone and content, exposed him to ridicule and damaged his ability to work in the tennis world in the future.

Apparently, more than 30 news outlets agreed to settle with Dee with Reuters’ solicitors subsequently telling a hearing of the House of Commons’ Culture, Media and Sport Select Committee in 2008 that the news agency felt that it had really no option but to settle because it was faced with potential costs of trial of £1.2 million. In the end, it appears that Reuters was asked to pay Dee’s costs of £250,000, compared with its own legal costs of £30,000.

The Daily Telegraph did not settle and sought to dismiss the case on the basis of “justification” i.e., that the facts were true.

The English High Court agreed and  Mrs Justice Sharp held: “The incontestably true facts are that the Claimant [Robert Dee] did lose 54 matches in a row in straight sets in his first three years on the world ranking ITF / ATP tournaments on the international professional tennis circuit, and that this was the worst ever run” and thus the description “world’s worst” was “simply a consequence of his unprecedented record of defeats.”

The Daily Telegraph subsequently reported its victory under the headline “World’s worst’ tennis player loses again” and made a big play out of “how newspapers can be held to ransom by litigants spurred on by lawyers promising to work on a no win, no fee basis.”

To be fair, the Telegraph does triumphalism very well.

In fact, in this case Dee did have a no win/no fee agreement with his lawyers but only to 50%. With Dee’s potential personal liability in mind if he lost and of course their own potential losses, the Telegraph to be fair (again) did propose a costs cap of £50,000 and a neutral evaluation of the dispute but the claimant did not bite.  In the end Dee lost. His estimate of costs was just over £500,000 as against the defendant’s base costs estimate of £90,000.  If the normal rule of legal costs applied ie, the loser pays, Dee may have been facing a bill of nearly £300,000 in legal costs  – ouch.

Returning to Talbot, although no win no fee arrangements are not a feature of the Irish jurisdiction (yes, really), it is estimated that the combined costs for the golf club and GUI in this case will be in the region of €500,000 – with the GUI having the larger share at €300,000. And even if the defendants win and the normal rule on costs apply and is enforced, how likely is it that Mr Talbot will be able to pay?

No doubt some sort of neutral evaluation, mediation or alternative dispute resolution mechanism would have been the better option but the Talbot proceedings also reveal a limit in the use of ADR and that is where one party, as is their constitutional right, seeks their “day in court”. In short, ADR mechanisms do not always provide what the courts do for some claimants; a public declaration, sometimes vindicated by compensation, that they were “wronged” by the other party.

A ruling is expected from Herbert J within the month. Meanwhile Mr Talbot has announced that he is joining another golf club for a short period. His current handicap is 21.

Jack Anderson lectures in sports law at Queen’s University, Belfast. Read more on his blog here>

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