Jim Walsh (Fianna Fail)

This amendment may have arisen because of a case that went back twice to the Supreme Court. The Supreme Court believed the award was too high the first time the case was heard. The second time around the jury award in the High Court was actually higher. That highlights much inefficiency and it is very costly to people. There is a need to address that.

I agree with the Minister that in all such cases there must be an element of judicial discretion. Questions may arise as to where one draws the line in specific instances. However, we must also give discretion to the jury. In a defamation action, it would not be correct for the jury to hear the case and make a decision, having debated all the circumstances and whether defamation has occurred, and for the judge to then direct it as to the damages. However, I would have no objection to the judge setting parameters as to the damages. In the case to which I referred, it would seem obvious that when the case was heard again in the High Court, the jury would have been informed of what had happened in the previous case. At least it would have made a determination with the views of the Supreme Court in mind. Could there be a meeting of the ways between the words "may advise" or "set parameters" rather than being absolutely prescriptive in regard to the damages which would be a serious deviation of jury discretion?

In regard to what Senator Mansergh said, there may well be inconsistencies between juries but the same can be said of the Judiciary, of which we have recent evidence. Leaving it to the Judiciary does not mean that when it comes to the damages issue there will be greater consistency. There was a call for a debate on the consistency of sentencing on today's Order of Business, although I do not know the outcome of that.

I genuinely believe a system should be in place whereby judicial decisions can be assessed. I am not saying this should be done by outside people but perhaps by a judicial group. Where serious inconsistencies appear to have taken place, a judge should have to make a case to that judicial group made up of members of the Judiciary. If such a group thought the judge was wrong, at least other judges would learn from that and it would constitute a form of guidance within the judicial system.

As for allowing damages, I was in business for many years and when personal injuries claims arose, one's legal advisers would suggest that were the case held before a particular judge, he or she would be more balanced in his or her approach. On the other hand, were another judge to take the case, he or she would be completely biased towards the plaintiff.