Retailers – be careful with your defences in shoplifting claims!


By McDowell Purcell \ In All Posts, Litigation & Dispute Resolution

McNamara -v- Dunnes Stores (Parkway) Limited [2017] IEHC 172

This case was an appeal from the Circuit Court where the Plaintiff had been awarded €20,000 plus costs for defamation, false imprisonment, assault and battery.

The appeal was partially successful in that the Plaintiff’s allegations of false imprisonment, assault and battery were not upheld.

However the High Court agreed that the Plaintiff had been defamed and that the retailer had conducted the proceedings in a manner which merited an award of aggravated damages.

This case is a good example for retailers of the need to adopt a clear strategy in defending shoplifting claims.

Background to the Defamation

On 3 May 2008, Mary McNamara was shopping with her 12 year old daughter for a confirmation outfit in the Limerick Parkway shopping centre. Having purchased an outfit, the pair went into Dunnes Stores to find some matching items.

While she was browsing, Ms McNamara caught the attention of the Dunnes Stores security guard, Syed Hasnain Alam, who claimed to have observed her on the store cameras placing an item of clothing into her bag. The mother and daughter then left the store, followed by Mr. Alam who rushed out after them into the main shopping centre.

Their initial interaction was not caught by CCTV but footage showed Mr. Alam standing between the Plaintiff and the main exit of the shopping centre. The Plaintiff could then be viewed opening her bag for inspection by Mr. Alam, with a number of persons looking on, including her daughter. At the end of the encounter, Mr. Alam can then be seen returning to Dunnes Stores, having not found any stolen items.

The Plaintiff returned to the store later that day to report the incident and the store manager apologised for Mr. Alam’s behaviour.

Retailer Arguments

Ms McNamara issued Circuit Court proceedings against the retailer, which were fully defended. Dunnes Stores sought to rely on the defence of qualified privilege, arguing that they were entitled to take necessary steps to protect their property and this included reasonable enquiries as to proof of purchase.

This defence was not successful and Ms McNamara was awarded €20,000 plus Costs. The retailer appealed to the High Court.

High Court Finding

Justice Murphy agreed with the Circuit Court that the conduct and words of the security guard had defamed Ms McNamara.

With regard to the retailers defence of qualified privilege, Murphy J rejected this argument on the basis that there was no evidence that Dunnes “genuinely but mistakenly” accused the Plaintiff of theft.

Murphy J found that it was not permissible for a defendant to seek to rely on qualified privilege and also to run a defence of justification. She stated that Dunnes had ample opportunity to make it clear that their employee was acting in a genuine but mistaken belief but specifically declined this opportunity, maintaining instead that the Plaintiff had actually stolen clothes. The only witness called for Dunnes was the security guard who repeated his assertions in the witness box.

Justice Murphy was also critical of the failure of Dunnes to retain any CCTV footage of the incident.

Damages

The Court was of the view that Ms McNamara significantly contributed to the publication of the defamatory comments. A public examination of her bag would have been avoided if she had returned to the store when first asked by the security guard.

Justice Murphy awarded €10,000 to Ms McNamara, which was then reduced by €2,500 in light of the Ms McNamara’s own contribution to her defamation.

The Court then restored this reduction in the form of aggravated damages of €2,500 for the “conduct of the defendant” in both their failure to retain CCTV footage and the nature of the defence put forward which gave evidence of justification “while masquerading as a defence of qualified privilege.”

Ms McNamara received €10,000 in total plus Costs.

The lesson for retailers is to carefully consider the specific defence(s) that it intends to rely on at hearing and to adopt a clear strategy for defending such shoplifting claims.

A copy of the judgement can be found here.

Authors: Killian O’Reilly, Mark Kelly, and Aideen Farrelly