Mr. Justice Bernard Barton:

I endorse both those views completely. The question the Cathaoirleach raises is a pertinent one. It is not the first time it has been raised. It was raised in 1991. There was a review in that year and it was suggested then. It was reviewed again in 2003, but what Mr. Harty outlined was not one of the proposals on the table. It was either take away the damages aspect of it altogether or leave it all together. In 2003, the decision was to leave the damages assessment with the juries, and that was reinforced with the 2009 Act.

In other countries it is quite interesting in that there seems to be a difference. Much of this is set out in the report. In Canada, there are some provinces where it is a matter of choice. It is, by the way, a matter of choice here. People are not forced to have a jury; it is simply their right to choose. In a world where we are recognising the right to choose in law, that is what we are talking about. Parties are not forced to have a jury, rather it is a right to choose one if they wish in the High Court. It is the same in Canada. Quebec and Ontario must be looked at differently because they have different civil law systems, but in the common law provinces, if I can put it that way, there is a right to trial by jury if the parties want it. They must say in advance whether they want it.

In Canada in 2020, trial by jury was essentially got rid of for most torts, but funnily enough, defamation was one of the torts where the Canadians did not do so. This was specifically because, looking at the Canadian assessment of this, the verdict of the jury - we heard this earlier - is a verdict of the people; the tort is committed in the public. It means a lot to the litigants that it is the people, represented, so to speak, through the jury, who vindicate their names. That was one of the reasons identified in Canada for retaining jury trial for defamation when it was being got rid of for many other torts. It was the same in Australia. In New Zealand the right is still there, though it is not used much. I think there were only three or four cases in the past five or six years there. Again, the authorities had to go through that process and they decided they would leave it to the parties to decide whether they did or did not want trial by jury. In British Columbia, if some of the parties want it they can have it. In some of the provinces in Canada there is a judicial discretion there. We need to be careful. The evolution of the law in Northern Ireland since partition and in England and Wales is very different. The changes in England in 2013 and in Scotland in 2021 are changes made to judicature Acts that were passed there after our independence. We need to be really careful about saying this is what has happened over in England. Over there it was a presumption, not a right, that a person was entitled to a jury trial. Here it is a right.

The proposal the Cathaoirleach raised that juries might not be involved in the assessment of damages is one I endorse somewhat. I will go halfway. I endorse what Mr. Harty said. It is useful in a defamation action that at least a jury could give an indicative award having been properly instructed by a judge and having been given the Higgins parameters, if I can put it that way. Then the jury can retire. The parties would then be free to say something to the judge. The Supreme Court said in Higgins that the trial judge should invite the jury to bring an award of damages within fairly wide parameters. What might be said is, in a case like this, having regard to everything inside these parameters, it is a matter for the jury. They may go outside it if they wish but the advice is they should do that. That process should be allowed to develop. The Act is going to continue to be reviewed. If it does not work then we can look at it again, but we must give it a chance. As I said, there is this halfway house that the award could be indicative. The jury has heard all the evidence and made findings of fact. The parties can then, if they wish, make representations to the judge and say we think they have it wrong. It is certainly a proposal worth looking at.