Michael McDowell (Dublin South East, Progressive Democrats)

I am making the simple and straightforward case that this is not mandatory. It does not say that the Supreme Court shall impose its own will. It simply says it may do it. It may well be that, in most cases, the Supreme Court will decide not to do it and send it back. At some point, as in the recent case, the Supreme Court should surely be in a position to say that this is ridiculous; that a case cannot keep going up and down like a yo-yo between the courts; that it believes the case is not worth more than €350,000, €250,000 or whatever the amount is; and that it is awarding that amount. I do not see anything wrong with that proposition.

The other proposition, which is that the Supreme Court can keep saying an amount is excessive but can never say what would be reasonable, is a very difficult one to defend. That is not a tenable point of view. If not for recent events, I would be in a weak position to make this point, but I can point to a very concrete and important case where the second jury was kept in the dark as to what the Supreme Court had decided. That is part of the existing regime. The second jury then sat down in good faith, listened to a trial for a long period of time and made what the Supreme Court had already ruled to be another error. This is not a good way to do business.

Section 12 does not direct the Supreme Court to substitute its own views. It empowers it to do so. I have no doubt that if the Supreme Court thought it was dealing with a case in which the damages were clearly inadequate, it could make a choice and ask the plaintiff whether he or she wanted to go back down to the other court or wanted the Supreme Court to decide what adequate damages were. It could inform the defendant that it believed he or she was right and that the award was excessive and ask him or her whether he or she wanted the court to decide on it or go down to the other court. In those circumstances, one is empowering the Supreme Court to break the log jam and reducing costs, which are fairly significant.

Members should remember that the ordinary person whom the Senator claims to defend cannot really afford two outings in court. His or her lawyers, who would normally do these cases on a no foal, no fee basis, cannot really afford incessant hearings on the same issue. One is dealing with the use of court time and High Court time is valuable as well.

I would fully accept the proposition from the Senator if the law at the moment stipulated that no matter what a High Court jury decided, the Supreme Court always said that it respected the jury's decision and that there was no question of the court ruling it excessive. If a Supreme Court does have a corrective function to say that an award is excessive, at some point, it seems illogical to say it cannot correct it in a more practical way and say an award is excessive because it is €300,000 too much and that it is awarding a plaintiff €200,000 instead of €500,000. I do not understand what is the huge objection to this.

I once represented a person who was assaulted by two members of the Garda Síochána. He got very heavy punitive damages and the matter went to the Supreme Court. It ruled that the punitive element of the damages was so disproportionate, having regard to the assault on the plaintiff, that it exceeded some kind of ratio of reasonableness. The court sent the case back to the High Court to be determined again. We then had another hearing which I believe took place in the High Court. I cannot recall whether a second jury decided the case or whether the case was eventually settled. In that particular case, whose name I remember but in which I will not now get involved, the Supreme Court said there had to be some relationship between punitive and general damages in the case and that the jury had got it badly wrong, a proposition with which I did not agree because I represented the plaintiff.

All I am saying to the Senator is that this is not a case of kowtowing to the media magnates. It is a case of trying to bring some rationality to the law. One could not possibly put Denis O'Brien in any category other than that of somebody with a growing interest in the media. I do not think it is kowtowing to the media magnates to say that at some stage, the Supreme Court in this kind of situation can break the log-jam and decide the amount of money that is reasonable in those circumstances. I do not think it is a terrible infringement of people's constitutional rights.