Dr. Mark Hanna:

I want to talk about the point of juries. The Chair said that the role of juries is as the trier of facts. That is their proper constitutional role. The question was around why juries are causing complications and causing expenses. It is because they are the trier of facts and because this is the constitutional role. In defamation proceedings the facts are often complicated and are often disputed. This means that the judge's role in the initial proceedings is limited under section 14 of the 2009 Act whereby the only question the judge can determine is whether the allegation in question is reasonably capable of bearing a defamatory meaning. That is a wide ambit there. The Supreme Court said in the Ganley case it is a high threshold and the judges should not really intervene. They should be slow to intervene on that basis. Lots of things are reasonably capable of bearing defamatory meaning. It is only once a jury has been empanelled to try those facts that they can actually determine that. This is a lengthy process and a costly process. My point is that, of course, plaintiffs can game that. They know they can put the defendant on the back foot and they will not have the claim properly tested until somewhere down the line by which time the defendants will have had to pay out quite a lot money in legal fees. That is the problem here. I would be all for juries trying defamation cases. They could maybe do as good a job as judges on issues of fact, but is simply the case that they do not.

On another point, there is something of an incongruence in the general scheme in trying to introduce an early dismissal mechanism and if it does not reverse a presumption of jury trials or abolish juries. If juries are the proper trier of facts in defamation claims, how can one dismiss claims at an early basis when there will always be disputed facts and complications of facts? I assume the early dismissal mechanism imagines that it is judges alone who will try those facts at a preliminary hearing and not give claims out. I just do not see why one could even retain juries and have an early dismissal mechanism at the same time. That seems to be unworkable, in my opinion.

On the issue of Ireland's ranking, I wonder what the metrics are in relation to that. If one takes into account the public defence interest and that Ireland has done particularly well in terms of the public interest defence, that is problematic. It is something that really needs to be addressed to properly protect freedom of expression in that regard.