Michael McDowell (Dublin South East, Progressive Democrats)

Exactly. Such an accusation must be dealt with more seriously than an idiot store detective challenging one in the wrong as one leaves a supermarket. Different graduations of seriousness exist. One may experience ten minutes of embarrassment and one's neighbours may state, "Did you see Norris? He was stopped coming out of such-and-such a shop." That may be bad but it is completely different compared with an accusation on the front page of a newspaper stating one took a bribe.

Many defamation actions used to be brought with regard to bounced cheques. I do not know whether they still are. It would involve a comparatively small group of people and is not the same as having an accusation of corruption printed on the front of a newspaper. The list goes on and on. In these circumstances, it is perfectly reasonable for a judge to tell a jury in approaching damages not to put a relatively small incident where a Visa card was improperly rejected with a loud voice in a restaurant at the top end at the level of an allegation of corruption or sexually interfering with a child.

We must have some basis on which a court can tell a jury not to go mad when it comes to damages and provide examples of cases where the Supreme Court ruled awards were excessive. Regarding compensatory damages, it would be helpful to many juries to know what would be the amount of damages awarded by the High Court to someone who lost an eye in a road traffic accident. They could then place it in the same scale and consider whether ten minutes of embarrassment in a supermarket was of the same order or less or more.

We can bring rationality and predictability to the area by allowing a judge to give directions. Directions should be understood in this context and not in a context of being told, "I direct you to award X thousand euro". Directions to a jury set out the legal principles on which members should address these issues. It is a fair concept to introduce into our law. It does not devalue the function of a jury to provide it with instances and state they are the general parameters within which it should decide the case.

If I were a juror I would feel cheated if I had sat in a jury box for two weeks listening to a case, had brought in a verdict and then read in the newspapers the matter was subsequently appealed to the Supreme Court where it was stated the award was five or ten times what was appropriate. The High Court judge could have told me on the day he charged me at the end of the case that €400,000 was rejected on a number of occasions by the Supreme Court and the case was by no means towards the serious end of the spectrum. I do not see what is wrong with this or how it makes a nonsense of a jury or interferes with its prerogative to determine damages to provide it with contextual material by reference to which it can make a fair decision.

I was in a situation of going into a court with no idea of what the jury would decide. Having worked on a number of defamation cases, I can tell the House when the jury comes back it is a bit like watching a slot machine. One wonders whether it will award €50,000, €500,000, €300,000 or €10,000. No one mentioned a figure to the jury or made a submission to the court at any stage during the case on this issue. Suddenly, an amount is announced.

It is all very well for us to have crossed wires. We have extremely rich and successful newspapers. However, we still have a dwindling band of smaller newspapers and publications which cannot take a hit of a couple of hundred thousand euro. They cannot even take the expense of appealing such an award to the Supreme Court. They are entitled to a system which is reasonably predictable with regard to what will happen.

It may be the phrase, "directions to the jury in relation to the matter of damages" seems to be a prescriptive instruction to tell a jury the level of damages to award. This is not what is involved. Directions to juries are an elaboration of the legal principles by which they approach the matter of damages and not a statement such as, "I advise you to award €50,000 in this case". This would not be accepted by the Supreme Court or either side in the case. It would be a matter for an appeal in itself if a judge stated, "This is a €50,000 case no more and no less" because effectively the judge would have taken over the jury's function and this is not what the Bill envisages.