Michael McDowell (Dublin South East, Progressive Democrats)

Section 12 allows a person who has gone to the High Court to sue a newspaper to say that the damages he or she was awarded were inadequate, and then to go to the Supreme Court and say he or she was accused of being corrupt, that the jury heard the evidence over ten days and awarded him or her €10,000, that he or she was a politician, that this was a serious allegation and that he or she was clearly entitled to more. One is entitled to say to the Supreme Court, and it does happen on occasion, that the damages awarded were inadequate. In those circumstances the Supreme Court is entitled either to say that one should go back to the High Court and empanel another jury with a view to being awarded higher damages or, in this case, if this was the law, to say that in its view those allegations certainly merited much more money.

I do not see that it has to have the construction Senator Norris has suggested. The Supreme Court, if it has the right to say that a particular award of damages is excessive, at some stage surely is entitled to ask by how much it is excessive. That is the point being discussed here. It is not a great point of high principle. As I understand the De Rossa case, and I was not involved in it in Strasbourg, what was at issue was that the court was saying that effectively the jury was left without direction, counsel could make no submission and, in consequence, the Irish law was deficient having regard to the European Convention of Human Rights. The Irish Government's lawyers said no, that this was the law as it stood and that it did not necessarily contravene the European Convention of Human Rights and that it was within our margin of appreciation to determine how we would have our law in this matter.