Brian Lenihan Jnr (Dublin West, Fianna Fail)

This amendment would undermine the whole purpose of the legislation. At present, the law on lodgements is clear. In every other class of action in civil proceedings it is open to a defendant to lodge a sum of money in satisfaction of the plaintiff's claim. It is open to a plaintiff to accept, or not accept, that in satisfaction of their claim. If a plaintiff does not accept a lodgement the plaintiff puts himself or herself at risk when the final hearing of the action takes place. This is because if the plaintiff fails, as the expression goes, to beat the lodgement, the plaintiff can be penalised in costs.

We have always had a procedure by way of lodgement in our legal system. The procedure encourages the settlement of legal actions. In the course of the debate on Committee Stage, I have already mentioned that the lodgement procedure encourages the speedy resolution of disputes. The whole thinking behind this legislation is that apologies should not be reckoned as admissions of liability so that we have more apologies, and that the defendants in these proceedings should be put in the same position as any other defendant, and allowed to lodge a sum of money so that the plaintiff can seriously consider his or her options before embarking on the hazard of a court proceeding.

It must be remembered that many of those who have suffered most in defamation proceedings in recent years have been plaintiffs who established a violation of their reputation but failed to beat lodgements. In justice to the defendants in such cases, whether they are newspapers or anyone else, I do not see why they should be put in a different position in civil litigation than any other person. Every other defendant in a civil litigation is entitled to make a lodgement. Senator Walsh is right in saying that many defendants are powerful organisations but we have always afforded them the facility of saying to a plaintiff, "This is my view about the colour of your money. If you think you are worth more than that, get on with it. If you don't, take it". It is not an unreasonable attitude for the State to take concerning the use of the courts system. In this section we are ensuring that the defendants in these actions are put in the same position as anyone else. Therefore, I cannot accept the amendment, which would entirely undermine the purpose of this legislation.

However, the Senator has made one point on which I may be able to provide him with a crumb of comfort on Report Stage. Section 27(3) states:

Where a payment to which this section applies is made, the plaintiff in the action concerned may accept the payment—

(a) in accordance with the rule referred to in subsection (2), or

(b) inform the court in which the action was brought, on notice to the defendant, of his or her acceptance of the payment in full settlement of the action.

In other words, the section envisages that where a lodgement is accepted a plaintiff will have the right to inform the court that the lodgement has been accepted. Senator Walsh may argue that is not an apology but it must be remembered that in our current legal system when the court awards damages at the end of a defamation action there is no apology either. The defendant is not required to apologise even in a High Court action where the jury brings in a verdict and awards a plaintiff €500,000 for the wrong done to that person's reputation. It is the case at present that there is still no requirement on that defendant to give an apology. The award speaks for itself. I would maintain that the acceptance of a lodgement speaks for itself as well. The fact that the newspaper had to pay up shows in effect that there was an argument about the item concerned.

I am prepared, however, on Report Stage to examine the issue of whether, in the context of the court being informed of the acceptance of the lodgement, the court may direct the publication of the fact of acceptance in a place of prominence in the offending broadcast or article. That is as far as I can go on that matter.