Michael McDowell (Dublin South East, Progressive Democrats)

Jurors cannot be so informed because a jury's function is not to bankrupt a newspaper but to compensate the plaintiff. Jurors must have their function explained to them. When juries assessed damages in personal injuries matters, a doctrine applied, and in so far as I am aware still applies, namely, there are certain sums of money for general damages that should not be exceeded in respect of personal injuries. Therefore, if someone's back was broken in a car crash and he or she will spend the remainder of his or her life in a wheelchair, it is not open to a judge assessing damages in such cases to decide to award €20 million. The Supreme Court has ruled that in general terms in such cases, there is an upper limit to general damages and it is not open to an Irish jury to do what might be done by an American jury, namely, to award $50 million to a person in such circumstances. It is not open to an Irish jury to so do and juries are given directions in respect of such matters.

I have in mind the old rule whereby the judge simply said nothing of any substance to juries in defamation cases, except they were to be reasonable and not to go mad. This should not be the case in defamation cases or in assault cases involving gardaí and the like. The judge should provide a clear view as to how jurors are to approach the assessment of damages in a case in which they find for the plaintiff.

For example, Members should consider a case in which a jury decides that Senator Norris has been libelled. It should be open to the judge to acknowledge the Senator was libelled, it was grossly defamatory, he has obviously suffered substantially and the case is not trivial. However, it should also be open to the judge to tell the jurors who are considering damages to bear in mind that had the Senator been in a car crash and were the judge to assess damages for a leg amputated below the knee, he or she would give him no more than €200,000 and that the jurors might consider that point in terms of deciding on compensatory damages.

There is nothing wrong with making such statements to a jury. Otherwise it will decide to give €750,000, €1 million or whatever and will pluck figures from the air. It does not usurp a jury's function to state this is the kind of thing that will happen. A recent case went through the courts twice and it would be absurd for the judge in that case to tell the jury to fix damages and not warn members if they go mad again the Supreme Court will knock down the damages.

It is pointless to ask a jury to perform an important function but not give legal guidance, and it is a matter of significance. The Supreme Court is entitled to reverse an award on the basis damages were excessive and it makes sense that a jury is told something at the court of first instance. Otherwise members of the jury can state that if they were told they would not have made the mistake of awarding damages of that size. Such a case would end in the High Court and never have to be appealed.

If the Supreme Court is given the right to state as a matter of law that €1 million is excessive having regard to the nature of the allegations made, one might as well give a High Court judge the same function to tell a jury an award of €1 million in a case will be knocked and not to make such an award. If a High Court judge is correct on such general guidance it is of significance.

We are trying to bring a degree of rationality to this. It is strange that juries are given detailed guidance on many functions but as a matter of tradition with regard to damages in defamation cases they were told that apart from being reasonable and not punitive they were at large to decide on the amount. However, five people in the Supreme Court will state they were not at large to do so and they got it wrong and it will return to another jury to decide the case.

There is no advantage in having a system where people seeking justice find their cases are brought to the Supreme Court and either sent back to the High Court or decided de novo in the Supreme Court on the issue of damages. Nothing would be wrong with the judge telling the jury in the High Court that a case is significant but not major and providing instances of damages awarded.

Sometimes people sue for defamation because they were stopped in a shop by a store detective and embarrassed and publically humiliated. If the Supreme Court stated in a previous case that in such instances €20,000 is enough compensation why should a jury about to make an award not be told this?