Mr. Justice Bernard Barton:

I welcome the opportunity afforded to appear in person to discuss the proposals contained in the general scheme. Of these, and given the very serious consequences for the administration of justice that will ensue, if enacted, I am particularly concerned with the proposal to abolish the right to trial by jury in High Court defamation proceedings set out in head 3. Quite apart from the knowledge and experience gained over nearly 40 years of practice as a barrister and senior counsel with a special interest in the law of torts, as the judge with responsibility for the management of the civil juries division of the High Court from 2017 to 2021, I had the privilege of presiding over some of the most legally significant high-profile defamation actions of the past decade. It is from this well that the expertise I possess is drawn and informs the contribution offered for the committee's consideration.

The proposal to abolish the legal right to trial by jury in High Court defamation actions represents a far-reaching and fundamental alteration in the law, which, if enacted, carries with it serious consequences not only for the legal rights of any citizen or corporation bringing defamation proceedings to recover damages for injury to his, her or its good name but also for the administration of justice. The primary consequences of the proposal are inherently undemocratic.

The primary consequences of abolition of the citizen’s legal right to jury trial are twofold. First, the litigant is deprived of the right to choose whether or not to have the case heard and determined by a jury of fellow citizens and, second, as a jury will no longer be required to decide the facts in such cases, the public will, in effect, be removed from involvement in the administration of justice. In essence, if the proposal was enacted, the democratic input into the decision-making process of law inherent in a trial by jury would be extinguished. Moreover, it is imperative that the enormity of what is being proposed in public policy terms is fully appreciated by Members of the Oireachtas. Abolition of the legal right to trial by jury would constitute a fundamental and profound shift in public policy that has long underlain the administration of justice in Ireland both before and after independence. Put simply, the legal right to jury trial lies at the heart of our system of justice. For centuries it has been established public policy that in proceedings for serious criminal offences and torts, civil wrongs, fact finding should be carried out wherever possible by a jury of fellow citizens and not by a judge or judges alone, a bench trial. Indeed, the legal right to trial by jury for non-minor criminal cases was considered so fundamental to the law that it was afforded constitutional protection by Article 38.As long ago as the 18th century, the famous jurist Blackstone in his Commentaries on the Common Law observed in regard to public policy and the right to trial by jury in civil proceedings: "It secures in the hands of the people that share which they ought to have in the administration of justice, and prevents the encroachment of more powerful and wealthy citizens." In his opinion, it was the most effective and independent means by which the civil liberties of the citizen might best be secured and by which the litigant would be protected against judicial caprice, an observation which, in my experience, is as valid today as it was when first made.

The right to jury trial and the concept of jury trial come to us from the Normans. It was so central to the law that it was enshrined in the Irish Magna Carta. Not many people realise that there was an Irish Magna Carta, of 1216, but there was. The right to jury trial was enshrined in that statute. In modern terms, it is a declared right under section 48 of the Supreme Court of Judicature Act (Ireland) 1877. When we obtained our independence and a new system of justice for administering the common law was being considered and set up in 1924, the Oireachtas and Members of the Oireachtas had to consider whether or not to continue the right to civil jury trial, and they did, in section 94 of The Courts of Justice Act 1924. All the rights enjoyed by a citizen claiming an injury to his or her reputation or for any civil wrong recognised by the law at that time were enshrined in section 94. Only once since independence has there been interference with this right. That was in 1988 when the Oireachtas abolished the right to civil jury trial for personal injury actions in respect of personal injuries not intentionally caused.

I will pause there for a moment. Throughout the report upon which the scheme is based, it is repeated that keeping jury trial for defamation would be inconsistent because the 1988 Act abolished the right to jury trial in all civil proceedings other than a few cases. That is a completely erroneous statement of the law. It is totally and utterly erroneous. The objective of the proposal essentially is to reduce the time for the hearing of a case, reduce legal costs and deal with a perception of awards that are considered to be perverse and the costs associated with appeals. These are the stated objectives. These, in my respectful submission to the committee, are incorrect. It is a false premise. Essentially, what has happened is a bit of an accident, unfortunately. It is an accidental confluence. A month after the report was published on foot of which this scheme has been drawn up, the Supreme Court dealt precisely and exactly with the very mischief which the scheme proposes to address, namely, the levels of damages and how those might be controlled to introduce proportionality and consistency in awards. That has been done by the Supreme Court in the case of Higgins v. The Irish Aviation Authority at which I was the trial judge. Essentially, the court set out guidelines for all future cases heard in defamation, which will have to be given to juries. I fully expect that the objective that had been sought in the report and in the scheme will be met in this way. I will say only this and I will then close. The decision of the Supreme Court addresses the problem. If only out of respect for the Supreme Court, my submission to the Oireachtas is that the decision in the court should be given an opportunity to be implemented, to see how it works, and whether in fact, in practice, it achieves the objectives that have been set out.