James Lawless (Kildare North, Fianna Fail) | Oireachtas source

That concludes the opening comments. They have been very helpful.

The witnesses have the benefit of coming in as the second round, so most have presumably heard what was said the previous day. I will give them the opportunity to respond to that and engage on those points.

We heard in a couple of the opening statements that juries should be abolished. At least one or two speakers said they would see the abolition of juries as a positive. That was not the view at the previous hearing. Dr. Hanna said jury trials can add to the expense. Is there a mismatch? There is an issue, it would appear from the views around the table today, that defamation trials take too long to get heard or are too costly. Perhaps that frustration is being misdirected towards the role of juries. I would like to drill into that. Is it possible there are other impediments or blockers in the system? It will be important to understand these issues when we formulate our report. It is not apparent to me why jury trials would be more costly. There may be an issue that the Courts Service does not provide enough jury weeks in the court year. That is different from saying jury trials are causing delays. If that is the case, the lack of juries is causing the delay rather than the jury itself.

A suggestion emerged in the previous session concerning a recent Supreme Court decision on the awards that should be made in defamation cases. That decision was very helpful, albeit late in the day, and set out the categories of defamatory wrong and where an individual case might fall. I expect great guidance from that. A suggestion emerged the last day that a jury could be retained to make a finding of fact as to whether the utterance, nuance, statement or behaviour was defamatory. Words can have many meanings and demographics and class can mean all sorts of different readings of words. A jury of one’s peers can decide if it is defamatory or not and then it falls to a judge to thank them for their verdict and decide the level of damages. It is not dissimilar to a criminal trial in which a jury decides if a person is guilty or not guilty and the judge decides the appropriate sentence. That might be a way to take it if there is a concern about unpredictable or inconsistent awards of damages by jury: taking the jury out of the damage award but keeping it for the finding of fact. I am interested in the views in this room on that suggestion.

Another point made at the previous hearing on which I invite comment was that the media are only a small portion of the parties making up defamation trials. It is often neighbour suing neighbour. The retail issue is a specific subconcern, but there are many categories and the media may not even be the lion’s share. They are the more high-profile ones, but the day-to-day ones may not involve the media. There was something suggested about vexatious trials and I think retail was mentioned. It strikes me that most of the vexatious or retail-type defamations would probably go to the Circuit Court so there would not be a jury. A jury would only come into play if the case goes to the High Court so, by definition, it must have a significant value associated with it in the first place and there would be a penalty and cost if it does not.

There is an anomaly and a question the committee will have to solve. It has been said today, and is often said elsewhere, that defamation reform is long awaited and much needed. Equally, we see a World Press Freedom Index placing Ireland in the top two, three or four in the world. It does not seem to compute. I struggle to square that circle. That is something the committee will have to address when we get to our deliberations.