Jim Walsh (Fianna Fail)

I concede the Minister made a logical point in respect of the case he mentioned where the Supreme Court referred it back and there was a subsequent significantly higher award of damages. I can see the dilemma. On the other hand, I have serious misgivings about the Supreme Court making its decision against the High Court where the full ambit of evidence, cross-examination and so on has been played out and the effect it may have on the defendant.

I note in section 29(2) that a clause has been stitched in which obliges the High Court judge to give directions to the jury on the matter of damages. I may be jumping ahead but it has some relevance to the section we are dealing with. What is expected there? I do not think it would be proper for the High Court judge to be prescriptive about the actual damages. I would have no difficulty in his setting parameters but some discretion must be allowed to the jury. In all of this, could there be an instance where a High Court judge spells out the parameters within which the award of the jury must be? In that case the defendant should not be in a position to go to the Supreme Court which would independently decide. Perhaps Supreme Court involvement should be restricted to apply only in cases where the award of damages is contrary to the advice of the High Court judge. If he or she spelt out parameters rather than being prescriptive on the actual amount of damages, it might introduce an element of fairness and it would free up the courts. Part of the purpose of this should be to prevent all these cases going up the line through the various courts and clogging up the system. I suggest the Minister look at this between now and Report Stage to see if there could be a refinement of that section.