Mr. Justice Bernard Barton:

I want to make an observation on what I think is a very good question. It might be of assistance to enlighten the committee though of my own experience. For four or five years, I was responsible for management of the civil jury list, which includes defamation cases. I got into trouble a number of time as a sitting judge. I was rapped on the knuckles by the then president of the High Court for making public statements about the incredible delays in the list. From experience, during nearly every legal term in those five years I had to tell a courtroom of litigants and lawyers that I was sorry, but I did not have a judge for them. The president would regularly call me to say he could not give me another judge. He needed that judge to go somewhere else. The report is replete with criticisms of the delays, which all point to juries. It basically says that by having juries we have all these delays. It takes far too long to get cases on. When I retired in 2021, there was a litigant before the court who had been waiting for a trial since 2015. Admittedly, that was exceptional, but two or three year delays were not unusual. The reason for that had nothing whatsoever to do with jury trial - or trial by jury. It had everything to do with resourcing. I am long enough in the tooth that I can tell the committee that when we had judges and courtrooms in jury cases, there was no problem. You could have had a trial in six months. Simply put, the number of judges and resources simply has not kept up with the explosion of litigation on every level. The Government has taken a decision and more judges are now being appointed. That is very welcome. I was involved in part of the submission to the Government looking for more judges. One of the reasons was basically to deal with delays in the jury list. I was surprised the State had not been sued by somebody and brought to the European Court of Justice because of the delays. What I find to difficult to understand is why Department officials appear to have bought the argument that it is juries and the jury system, which is responsible for these delays. That is completely incorrect. That is not the reason. With sufficient resources people would be able to get their trials done in six months. It could be turned around in the morning if you could produce the judges and the resources.

On the point made about assumptions, section 5 of the Act requires this review to take place. The Act sets out that the Department review should have regard to changes in other jurisdictions, which it has. It has looked at Canada, Australia, Northern Ireland, England and Scotland. It has done all of that. It took what, in its view, were important decisions, which influenced its recommendations, and which have taken place since the passing of the 2009 Act. This is supposed to be a review of the 2009 Act. The interesting thing when you look at it is that they talk about the de Rossa case. They talk about Leech and they talk about McDonagh. The interesting thing is that none of these cases has anything to do with the 2009 Act. They all arise from defamations, which occurred before 2009. They were decided after, but they have nothing to do with the 2009 Act.

To put this in some context, 1,885 defamation cases commenced between 2014 and 2020. Of those, almost 1,200 were in the High Court. Of those, approximately 164 in that period were resolved in the face of the court, either by a full hearing or by the parties reaching a settlement. To a certain extent that explains the long list delay that exists of cases waiting to get on. The report identifies four cases in which the superior court, the appellate court, reversed a jury award. However, anybody reading the report could be forgiven for believing that juries regularly get it wrong, and the awards are disproportionate and excessive. Out of that entire number, you could count those on one hand. Two of those cases have nothing to do with the 2009 Act. It is a seriously false premise.

The other incorrect premise on which the proposals are based - heavy emphasis is laid on it in the report - is in respect of Higgins v.The Irish Aviation Authority. A jury had awarded approximately €370,000 for aggravated damages, punitive damages, general damages. Following the Leech case, it was decided that counsel should be able to make submissions to juries on award levels. The report is resplendent with remarks about how the outrageous decision of the jury in Higgins v.The Irish Aviation Authority was reversed by 80% by the Court of Appeal, which unanimously condemned it and reduced the award by 80%. Actually it reduced it to €76,500. What the report does not tell us is that the Court of Appeal decision was reversed unanimously by the Supreme Court. There is a really good example of a premise which is no longer factually founded on what is correct. It is completely different. In fact, in the Supreme Court two of the judges wrote long written judgments in which they said they thought the awards of the jury should be left intact.

The report does not make any mention of Gordon v.The Irish Racehorse Trainers Association, I think again for accidental reasons because unfortunately the decision of the Court of Appeal in that case came after the report was published. I am not seeking in any way to criticise the Department's review of this. The fact of the matter is that Higgins and Gordon were decided after the report was published. The committee is in a position to consider the law as it is today, not as it was at the time the report was published. The relevance of Gordon is that a €300,000 award by a jury was unanimously upheld by the Court of Appeal. That does not appear in or influence the report or this scheme in any way.

One other critical case had a big impact not just on defamation but on all tort cases, namely Kehoe v.Raidió Teilifís Éireann. I wondered why this case does not bear a mention anywhere in the report, particularly as the report deals with live broadcast defamation on radio or on TV. The report specifically deals with all of this, it is exactly what happened in Kehoe and RTÉ yet there is no mention of the case. I could not help wondering whether that was because the award of the jury was the lowest award in the past 50 years and it did not really suit the argument to highlight that case. RTÉ had made a very strong submission to get rid of juries so it would not suit them very much to include a case where they had actually done extremely well. The case has a huge significance for all tort law yet it does not bear a mention anywhere. There is no explanation as to that.

As I mentioned at the outset, the actual explanation for the abolition of juries given in the report, insofar as there is one in chapter 8, is that it would save costs, shorten cases, lead more consistent and reliable rewards, and that it is inconsistent to keep juries in circumstances where they were abolished for everything else. All of those premises are wrong. We have been through this before. The Oireachtas was persuaded in 1988 to get rid of juries in personal injury actions because it was told by those who favoured abolition that premiums would go down as awards would go down, cases would take less time and it would be less expensive. Where have we heard all this before? We have been there. What happened? Awards went up, costs went up and the number of cases increased. It had the very opposite result to what had been said was likely to happen.

We do not have to go back to 1988. It has happened in England since 2013. They have gone in that direction in Scotland now. In the UK, there has been an explosion in legal costs. It has not had the desired effects at all, in fact the reverse is the case. This is not properly dealt with at all in the report, in my respectful submission. It talks about the changes which have occurred in England and what happens in there, damages and everything but there is no mention of the impact. Has it shortened cases significantly and has it reduced legal costs? I draw the committee's attention to the recent case of Rebekah Vardy v.Coleen Rooney. The legal costs in that case were more than £4.5 million. There is no basis for the idea that getting rid of juries is going to reduce costs. It is false. Those who propose the abolition obviously advance it on the basis of those claims but the claims do not stand up to scrutiny. I am sorry, I have gone on far too long.