Brian Lenihan Jnr (Dublin West, Fianna Fail)

Of course, the entire Bill is about how one computes damages in a libel action. Specifically, section 29 sets out the standards to be applied and there is a list of matters which the jury must take into account in arriving at an award of damages.

Essentially, this amendment is trying to add an additional matter which should be taken into account, namely a recommendation of the Press Council. Senator Norris presented this as giving the Press Council some sort of teeth, although I fear it would give the courts a substantial toothache in their own teeth if one introduced this provision.

I will not take a point on the form of the amendment, but it is not clear to me that the amendment in its form respects the principle of the separation of powers because it appears to give undue weight to an opinion of a body, which is not a court or a judge under the Constitution, in the determination of proceedings.

I take Senator O'Toole's point that the intent of the amendment is to set up a Personal Injuries Assessment Board system. Perhaps there is a case for the Press Council to set up a PIAB-type arrangement for libel claims. I see the arguments, but it would need to be worked out in far greater detail than this amendment. If the Press Council came forward with a suitable proposal I would entertain and consider it, but this proposal in its terms cannot fly, so to speak.

In response to Senator Mullen on the question of juries, the Supreme Court has stated the jury is the correct constitutional tribunal to determine issues of liability because the person in the jury box can make the judgment about whether the particular statement lowers the person's estimation in the eyes of the right-thinking men and women of the community, and that is an important function the jury has in defamation matters.

On damages, Senator Mullen made the point that one can review the position of the jury there. Of course, the plaintiff has an option. The plaintiff need not seek a trial by jury. A plaintiff can seek trial by judge alone on defamation matters. It always amazes me how public figures put themselves at risk before a jury in defamation cases and why they do not opt to elect for trial by judge alone. Of course, if one opts for the Circuit Court and one opts to limit the upper end of one's reputation at a designated monetary figure, then one has a trial by judge alone as well.