Brian Lenihan Jnr (Dublin West, Fianna Fail)

We can return to the function of the jury when we come to discuss that section of the Bill. In a High Court action the plaintiff always has the option to serve a notice of trial for judge alone or a notice of trial with judge and jury. The Senator's proposal would deprive the plaintiff of a right existing in Irish law if we abolished the plaintiff the right to have recourse to a jury in a case of this type. At present a plaintiff in an action of this type has the right to insist that his or her reputation, or its reputation if we accept bodies corporate, can be judged by his or her fellow Irishmen and women in a jury. The Supreme Court has often adverted to the fact that in its view the jury is the correct constitutional tribunal to determine the reputation of a person in the community.

Following from that the Supreme Court has always taken the view that the jury's verdict has a unique character in libel actions. It is very difficult if not almost impossible to appeal a jury verdict of no libel. For the same reason, the Supreme Court has been reluctant to interfere with awards of juries in libel actions. While there is no statutory regulation or exception to it, under the Constitution the Supreme Court has jurisdiction to deal with all appeals from the High Court. Historically the Supreme Court has had an attitude that it is reluctant to interfere with the size of a jury award in these matters. However, there has been a well-advertised case in our courts, the particular facts of which I do not wish to mention, in which the Supreme Court ruled that the sum of damages was excessive and ordered a retrial in the High Court. The plaintiff won a sum in excess of the original court award. Where that happens there must be some reality in the position.

We must at least draw the attention of the Supreme Court to its power to substitute a verdict. If there is an outer limit on what the Supreme Court considers reasonable in an award of damages, the court should be in the position to award that. Defamation proceedings are lengthy, costly and dangerous for plaintiffs as well as for defendants. It is desirable in the interests of the State that the Supreme Court as the ultimate court of resort can have the power to substitute its own verdict as to damages at a certain stage in the proceedings and bring finality to matters. It is the court of ultimate resort in this jurisdiction.

Senator Norris was concerned that someone might have appealed to the High Court. A case that is heard in the High Court with a jury is a case of original jurisdiction. The only other tribunal before which a plaintiff can sue is the Circuit Court where the judge sits without a jury in such cases. An appeal of a decision of the Circuit Court would be by way of rehearing by judge alone in the High Court. The only circumstance of having a jury in such cases is in the High Court and the only appeal there is to the Supreme Court, which is the ultimate court of resort. If it believes that there is an outer limit beyond which an award has gone, then surely the Supreme Court should be free to award that outer limit and bring an end to the litigation rather than subjecting the parties to the expense of another High Court action. That is the purpose of this section.

Having said all that, I would like to revisit one matter in the section. As Senators are aware, lodgements are often made in defamation actions. One of the purposes of the Bill is to make it easier to make a lodgement. Were a plaintiff, for example, to defeat the lodgement in a High Court action but not defeat the lodgement in the substituted verdict of the Supreme Court, I believe there would be an injustice to the plaintiff in that circumstance. If the plaintiff had been lucky enough to beat the lodgement in the High Court, even though the Supreme Court took the view that he was outside his outer limit, that should not make the lodgement effective against that plaintiff. I want to revisit that issue in the context of this section.