Seanad debates

Tuesday, 4 December 2007

Defamation Bill 2006: Committee Stage

 

5:00 pm

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)

A pleading, in law, is an assertion of fact which is not sworn to or verified on oath, so it is not evidence. It is simply a description of the framework within which a plaintiff wishes to present a case or a defendant wishes to present a defence. Historically, in the law of defamation, pleadings were exchanged between the parties, a notice of trial was served and a hearing took place. It is open under our current law, therefore, for a plaintiff to base a defamation action on something he or she knows to be untrue but cannot be demonstrated by the defendant to be untrue.

The Government took the view, with which I agree having inherited this measure, that the presumption of falsity is an important safeguard for the plaintiff in libel proceedings. That said, we investigated whether there was some system we could introduce that would ensure at least that truth is at a premium in these actions. The recommendation we came up with was that an affidavit should be sworn by the plaintiff verifying any assertions or allegations of fact in the pleading. A similar obligation is cast on the defendant with regard to any assertions of fact in his or her pleading. There is, therefore, no question of putting the plaintiff in a different position from the defendant.

The question of exaggeration was raised by Senator O'Toole. The issue of exaggeration arises in the context of the PIAB as the exaggeration of injuries in the context of a claim for damages was a major problem. In the type of action with which we are dealing here, however, the danger is not exaggeration but downright lies on either side. To guard against that, therefore, both sides are required to swear an affidavit verifying the matters set out in their pleadings.

The point raised by Senator Walsh about the extent of the matters covered by sworn affidavit, on which Senator Alex White corrected him, is a good one. It is confined to the pleadings. The plaintiff swearing the verifying affidavit is asserting, therefore, that his or her case is true, not that other collateral matters that may rise evidentially in the course of the libel hearing are true or false. He or she verifies merely that the case being put down on paper — the instructions given to solicitors that have been transmitted by counsel into a legal formula outlining the scope of the claim — is true as a matter of sworn evidence.

Senator Regan raised the issue of sanction for an untrue statement. The sanction is a prosecution for perjury, although this is not very common. The greater danger with this provision is that there will be extensive cross-examination of parties, both plaintiffs and defendants, on the basis that they have sworn to their assertions. There will be theatricals, therefore, especially in jury trials, involving the fact that the assertion has been sworn to. This is an action, however, in which truth should be at a premium. The reason we legislate for defamation and the reason we have damages and a battery of remedies available to plaintiffs is to ensure truth is at a premium. It is a reasonable legislative provision that the parties should swear to what they believe to be the case.

Senator O'Toole raised the question of declaratory orders. A declaratory order comes into operation after the lodgement of pleadings. If we examine section 26(5), we will see that a person who claims to be the subject of a statement he or she alleges to be defamatory can apply to the High Court for an order that the statement is false and defamatory of him or her. As I understand the position, this constitutes an existing libel action with a sworn affidavit. There is no need, therefore, to impose an additional obligation in the context of section 7. It should be noted that an application under subsection (5) "shall be brought by motion on notice to the respondent grounded on affidavit." The application is grounded on a sworn document when the plaintiff opts to pursue the declaratory route. Section 7, which does not apply to the declaratory order, clarifies the law where one can arise.

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