Marie Sherlock (Dublin Central, Labour)

I move amendment No. 1:

In page 6, between lines 19 and 20, to insert the following:

“Role of jury in High Court defamation actions

4. (1) Subject to subsection (2) and notwithstanding section 94 of The Courts of Justice Act 1924, or any other provision made by or under any enactment or rule of law, where a defamation action is tried by the High Court sitting with a jury—

(a) all questions of fact shall be tried by the jury, and

(b) damages (if any) shall be assessed and awarded by the trial judge.

(2) This section applies only to defamation actions that are instituted on or after the date of its coming into operation.”.

I speak as a former media spokesperson for the Labour Party. I listened for a long time to the concerns of newspaper editors about the crippling cost of insurance in the operational costs of newspapers. We all need to support our regional and national newspapers in this country. There was a campaign for an overhaul of the defamation laws, understandably, as newspaper editors saw at the time that the risks associated with defamation were having a disproportionate impact on their insurance premiums. However, we have serious concerns about key elements of this Bill. This Bill is based on the recommendations of the in-house review of the defamation Act 2009, published by the Department in March 2020. This took place two years before the Supreme Court judgment in March 2022 in the case of Higgins v. The Irish Aviation Authority where Mr. Justice John MacMenamin delivered the lead judgment. Our view in the Labour Party is the in-house review and the Bill are out of date. Some of us are familiar with conversations regarding personal injuries. Judicial guidelines had to be introduced to put some control on damages arising from personal injuries. The courts Act 1988 abolished juries for personal injuries. We were promised then that it would reduce excessive or disproportionate awards, significantly reduce delays and legal costs, reduce the length of hearings, provide greater clarity and certainty and would facilitate earlier settlement of cases. As we all know, it did nothing of the sort. Insurance premiums continued to soar for decades. Even with the introduction of the Personal Injuries Assessment Board, PIAB, we still did not see the necessary reforms. It was only when judicial guidelines were introduced that we began to see some changes in what was paid out.

That is why the Supreme Court judgment in the Higgins case is groundbreaking and so important. For the first time, the ruling in that case categorised general damage awards in defamation cases in four categories. The first and lowest applies to moderate defamation for awards of zero to €50,000. There is a second band for what could be termed medium damages, awarding €50,000 to €125,000, and a third category for serious defamatory material, from €125,000 to €199,000. At the top of the scale of awards in the case of the most egregious defamation are awards in excess of €200,000 made before the courts. The Supreme Court recognised that these awards must be seen as truly exceptional and there was very real damage to the individual's reputation, where the judgment was clearly tilted in favour of the vindication of a good name.

We argue that the judgment in the Higgins case should be given more time to bed down. It is only three years old. It needs to be applied and its application assessed. It is important to note that the law as set out in the Higgins case is still the law. Nothing in this Bill attempts to change that law. It does not matter whether future cases are heard by a jury or a judge sitting alone - either way, there will still be four bands of awards set out by the Supreme Court. Those bands will continue to be applied. I do not see how the abolition of a jury will affect the level of damages awarded in future cases since they will continue to be awarded in a way set down by the binding decision of the Supreme Court.

I wish to refer to another case in 2017, McDonagh v. Sunday Newspapers Ltd. Mr. Justice MacMenamin noted:

The right to a good name, freedom of expression and public opinion are closely connected concepts, in which the concept of 'the views of right thinking people' are inherently part of the test. Juries are intended to reflect the views of the public. They [reflect] the public mind and public opinion in balancing the constitutional values embodied in statutory form. This 'public dimension' is of great relevance in measuring whether a publication is actually defamatory at all; if it is, whether there is a defence to it; and if a publication is found to be defamatory, the measure of damages.

If defamation is about damage to the standing of a person in the community, who is better to decide? That is the question in front of us - is it a judge or a cross-section of the Irish people? We express some surprise that we have not seen an amendment from the Minister to this Bill. On Second Stage, he told the Dáil, "I share many of the concerns being expressed by other Deputies. The decision to abolish juries in the High Court would be short-sighted." He went on to say, "I am concerned that the reason to remove juries for the purpose of defamation actions has not been thought out." The obvious question is: has the Minister changed his mind? Why? Some may argue there is an element of departmental capture in what we have before us on Committee Stage.

If the main reason to abolish juries in defamation cases is to make litigation less expensive, we must consider that one reason for the cost of defamation cases is that the law does not permit these cases to be brought in the cheapest available court. Since 1924, our courts Act has excluded defamation from the jurisdiction of the District Court. That means the simplest defamation action starts out with a value of at least €15,000. We ask the Minister to consider moving minor defamation cases to the lower court where lower damages will be awarded. If that does not prove to be the case, we will table an amendment to that effect on Report Stage.

ISME and retailers have also raised concerns that defamation cases can be used to inflict costs on a defendant. Will the Minister address them in his comments? On Second Stage, my former party colleague, Brendan Howlin, the justice spokesperson for our party at the time, quoted a former president of the High Court, who said that in this country you have to be "a pauper or a millionaire" to pursue legal proceedings. The current Minister, who was then a backbench TD, disagreed with his contention, arguing ordinary citizens can and do get access because of a no foal, no fee that operates to fund litigation. As the Minister knows, no foal, no fee is between a litigant and his or her lawyers. If the plaintiff does not win the case, the lawyers will not be paid. If a no foal, no fee agreement does not protect a litigant against the claims of the other side's lawyers, an enormous liability arises.

That is why, as the Minister well knows, when a lay person goes into a solicitor's office and seeks advice about taking a defamation case or indeed many other types of cases, almost the first question that will be asked by a lawyer is "Do you own your own house?". A homeowner or a person who has assets of any type faces the very real prospect of an award of costs being followed up by adjudged mortgage or an order of sale. That is why the distinguished former president of the High Court pointed out that only millionaires and paupers can be found in our superior courts.

I want to make two final and related comments about defamation and its cost. First, it is my understanding that it is still the case as a general rule, and without considering the complexity of any particular case, that legal fees in defamation actions are higher than the rate applicable to any other civil action. We should be using this opportunity to abolish any informal practice or standard within the practise of law that permits legal costs adjudicators to treat defamation as special and therefore permitting higher fees. Second, the Civil Legal Aid Act of 1995 still lists designated matters in respect of which legal aid may not be granted by the Legal Aid Board. The refusal to cover defamation seems to be based on a notion that suing for defamation is not only, but out to remain, the preserve of the well-to-do. Obviously, that is clearly a very outdated notion at this point. This attitude is completely at variance with the constitutional obligation of the State to vindicate the good name of the citizen. Given the constitutional status of the right of people to their good name, this exclusion is simply unjustifiable and we believe this restriction needs to be deleted. There are more than enough safeguards in the law to ensure that the Legal Aid Board does not fund frivolous or spurious actions.

See this speech in context