Jim Walsh (Fianna Fail)

I move amendment No. 33:

In page 21, subsection (4), line 41, to delete "not".

I had much debate in this regard with the former Minister, Mr. Michael McDowell. I felt it was one of the most un-republican aspects of legislation I had seen introduced in the House, and I still take equally strong exception to it.

This section deals with the lodgement of money in settlement of an action. My understanding is that it is customary in civil cases that where compensation is in order, the defendant can agree to pay a sum and can lodge it in court. It is then open to the plaintiff whether it is accepted. In general, this is reasonable in cases where monetary compensation is the primary purpose of the case being pursued. Obviously, if the plaintiff decides decides not to accept the lodgement, the lodgement is not disclosed to the court, and the court functions without the knowledge of the sum of the offer from the defendant. However, if the subsequent outcome of the case is less than the lodgement initially offered, the plaintiff is caught with the costs of the case. That is my understanding of the matter, and the eminent legal persons present in the House may correct me if required.

This section concerns a case for defamation. I put it to the Minister that while not exclusively, most plaintiffs' primary purpose in such cases is to re-establish their reputations, which have been seriously eroded through libel or defamation in some media organ. Therefore the primary purpose in taking such a case is to obtain an apology and a correction. To some extent in the public mind the attending damages vindicate the individual's right and the seriousness of the defamation they suffered.

In this section, however, we are saying that if a lodgment of money is made, the defendant shall not be required to admit liability. Section 27(4) states: "The defendant shall not be required to admit liability in an action for damages for defamation when making a payment to which this section applies." In other words, they do not have to offer an apology, but do offer an amount of money. The premier motivation of the individual who has been defamed is to re-establish their good name and reputation through the pursuit of such a case, and subsequently the court may vindicate their position by ruling that they were defamed and that the media concerned must publish a retraction and an apology. For some reason, however, they may get a financial award which is less than the lodgement. As I read this section, they could be caught for costs totalling hundreds of thousands of euro for having pursued the case and therefore would be at a huge financial loss, while having won the case on the fundamental issue. That is totally unfair and works against the plaintiff in such situations.

In general, there will be a significant divergence between the resources available to the defendant and those available to the plaintiff. As a consequence, this section will make it difficult for a plaintiff to continue prosecuting a case where they obtain an award which — whether they accept it or not — will often be determined by their legal advice. We are placing the plaintiff in an invidious position. It takes nothing away from the defendant to give an apology as well as providing money. The question is, however, why would they make a compensatory award if in fact the defendant's case was unlikely to lead to the plaintiff winning it? I strongly urge that the word "not" should be deleted and therefore if a lodgment is to be made it must be accompanied by an agreement to publish an apology and a correction. In that case there is no admission of liability because if the case is pursued the matter is not known to the court, as I understand it. That is what I am seeking. We debated this matter in the House before and at that time neither the Minister nor anybody else said my interpretation was incorrect in any way.