Mr. Mark Harty:

The Senator asked about the incorrect assumptions. There are a number of incorrect assumptions and I should be clear that they are not made by the author of the report. The author of the report is relying on a number of different sources who make assumptions. For example, there is an assumption that juries will not understand law. Juries do not decide questions of law. The questions of law are all decided by the judge who then allows the matters to go to the jury on the facts. It is an incorrect assumption to say that the jury is ever going to really need to understand anything to do with the law. They will simply be directed as to the test they must apply and that is it.

There are other assumptions relating to the delays. Unfortunately, in recent years there have been significant delays in defamation actions being heard. However, those delays deal with infrastructural matters where insufficient court space and resources have been allocated to jury actions. As a result of that under allocation of resources, there have been significant delays. Other complaints raised all relate to appeals up to the Supreme Court and back. The key case is Higgins v. the Irish Aviation Authority, which went to the Supreme Court twice. The reference to that in the report dealing with delay, blames the jury for something in which it had no role or part. Jury actions are in fact more efficient. Unlike a judge's decision, there is no requirement for a reasoned decision from a jury. Your case is heard, and you usually have your verdict within 24 hours. One particular judge-heard defamation action in which I was involved, took 30 days to hear and almost one year to get the judgment. The delays were far greater in the judge alone action, than in a jury action. That is what I say in terms of the incorrectness of this. They are blaming the jury element of the current system for the problems, and it is not correct to say so. Similarly, when it comes to costs, it is an incorrect assumption that a jury must increase the costs with an action. In fact, I would say it is quite the opposite. The experience in the UK has shown that costs have gone through the roof since juries were abolished. That could be due to a variety of things. It would be quite difficult at this stage, and I would be careful when analysing how that has happened in the UK. There has certainly been a vast increase in the number of pre-trial applications such as serious harm tests and other things. These have caused costs to balloon in the UK. None of that has to do with jury actions. It is an incorrect assumption that jury actions are more expensive. No evidence is being relied on to make that case. All that is being said is that an action was expensive because it was a jury action. That is not the case. Neither is it the case that an action took a long time to be heard because it was a jury. It is simply an incorrect assumption as it relates to those matters. The anti-SLAPP question is an interesting one, as to whether an anti-SLAPP Act, of itself, would be a better way to go. There are other actions, which could feature in such things. What occurs to me would be privacy action, breach of confidence actions and economic conspiracy actions. Each of those could be used as strategic litigation against public participation. In effect, we could imagine attempts to quash whistleblowers on the other side. It would be of value if this committee were to look into that issue as a broader question. I am not entirely clear where the European proposals now stand. I cannot assist the committee on that. However, it is interesting to consider looking for a broader range of actions and not be simply limited to defamation. For example, malicious falsehood action would not be covered under the current definition of the SLAPP. That is a simple one. Those are the two answers on which I think I can be of most assistance. I do not want to take too much time.