Barry Ward (Fine Gael) | Oireachtas source

I am a member of the Bar and so I am not totally disinterested in this. I practice in this area on behalf of both plaintiffs and defendants.

I absolutely endorse the submissions in respect of jury trials. It is absolutely short-sighted to suggest that they should be abolished because they are a really important part of the fairness and the commonality of defamation proceedings. The word "caprice" was used in regard to judges. I would never say that but the reality is that the ordinary man on the street has a much better appreciation of how an ordinary man on the street is affected. The input of a citizen on a jury is really important and I hope our report will reflect that in due course. I agree with the submissions that this aspect in head 3 should be reconsidered. That said, there is room for suggesting that the awards in that regard should remain within the judicial purview rather than being left to juries. I would accord with some of the submissions in that regard. It makes sense for juries to be making findings of fact rather than findings of damages.

I have two questions for all of the experts who have come before the committee today. First, in head 4, subhead 3 there is a reference to serious financial loss relating to the impact but I do not think there is a definition of same. Do any of our contributors have a view on what that definition should be or to what extent it should be defined? Specifically in the context of a corporation taking an action against an individual or another corporation, should serious financial loss be defined and, if so, how should it be defined?

My second question is on transient retail defamation. I have some sympathy. I have appeared in cases of this. What is set out in head 6 around allowing retail premises to ask a reasonable question is fair enough. I have argued unsuccessfully that there is a qualified privilege for a retailer to ask someone if they can prove they have paid for an item before they remove it from the premises, but what is most important in that, in my experience of dealing with litigants in this area, is the respect factor. There is a world of difference between the "Stop! Thief!" characterisation or "Oi, you, have you paid for that?" and "Excuse me, I wonder could I see your receipt". There is a world of difference between the two and I do not know if it is possible to frame in the legislation some kind of accommodation of the manner in which the question is phrased as opposed to the bald indemnity these heads appear to give to retailers in that regard.

Then there are two other areas. I am saying this as much to get it into the report as anything else, that I have a real bugbear about amending legislation amending the law and saying "the Act is amended in the following regards" which makes it absolutely illegible for ordinary people. I support the idea that when we are amending legislation, we reproduce a consolidated Bill so that it is very clear what the law actually says. In the context of defamation particularly, that is something that should happen. I would be interested in anyone's comment on that.

On the Statute of Limitations, which is reduced for defamation, is there room to say it should be longer and that while the statute is one year, where there is a reasonable explanation, there might be a further year's extension or something like that? It is not in the heads. Does anyone have a view on that? Those questions are directed at no one in particular.