Michael McDowell (Dublin South East, Progressive Democrats)

The point is that if the Supreme Court is entitled to find that the award is excessive it must at some stage make sense. By the way it is not directory in this case; it is not obliged to do it. However, it can in some cases. It has a choice to suggest the critique of that restaurant in that magazine could not have been worth €150,000 and to substitute that amount for the €500,000 verdict given against Senator Norris. That is a reasonable course of action. We do not need to raise our blood pressure arguing the contrary.

At one stage in my career I was peripherally involved when the initial award was made in the De Rossa case — I happened to be counsel in the case. I believe the European Court of Human Rights decided the award of £1.5 million in the Tolstoy Miloslavsky case was excessive. It also decided that the fact the jury could not be talked to was in breach of the convention. In the De Rossa case, on different evidence, it found that Irish law and procedure were not wrong by reference to the conventions.

However, all we are dealing with are two propositions. While I was not involved in the Strasbourg case, I understand it was contended there should be some direction to the jury as to the appropriate amount of damages and-or the right for the newspaper to make some submission to the jury on the amount of the damages. That proposition was advanced. The learned team of Irish counsel stated this was for Ireland to decide, that we have a complex system here with checks and balances and this was not a breach of the European convention on the facts of this case. It is stretching and distorting matters to suggest that meant the Irish Government bound itself to keeping that in existence. It would be grotesque to suggest the implication of defending a case in Strasbourg was that we could never then change the law at home having stood it up at Strasbourg.

May I say this? No, I will not go any further.