Michael McDowell (Independent)

I agree with Senator Stephenson's remarks. The funny thing is that if a person brought a case in the Circuit Court for defamation, the judge could disbelieve them. The judge in the Circuit Court may or may not give a long judgment one way or the other on the matter. The judge can come to a view, one way or another, without a jury. However, if a person does not think they got a fair hearing in the Circuit Court, they can appeal to the High Court and get another judge to look at exactly the same claim they had brought. We are talking, however, about one judge on one occasion only who looks at the facts. Let us remember what the law is. The Court of Appeal is not going to going to reverse a decision on credibility except in the most extreme of circumstances, where it comes to the view that no reasonable person could have come to the view that the trial judge did in the High Court. It is not going to say that the trial judge was wrong to believe A and right to believe B. At least in the Circuit Court, if a case is determined there and gets what is necessarily a much shorter trial - I have not heard of any lengthy defamation cases in the Circuit Court - there is the right and the safety valve whereby they can appeal to the High Court against the entirety, have the whole case retried, bring different evidence if they like and improve their case. That is not possible in the High Court. It is a one-off job. If the judge disbelieves a person or accepts the other side's evidence, there is no way out of that.

One issue the Minister has not dealt with is the necessity in the High Court to give reasoned decisions. A judge cannot simply say with one sentence that they are holding for the plaintiff and against the defendant and awarding damages of, say, €40,000. A High Court judge cannot do that. They have to say precisely why they disbelieved the defendant and are holding for the plaintiff. They have to set out the reasoning for their decision, such as why they discounted the witnesses that were brought by the defendant and why they did not appeal to the judge as credible witnesses. They cannot simply give a broad-brush, jury issue paper-type determination in a High Court proceeding.

The Minister said, and this is important, that there is a balancing act over the Constitution. That is very true. The freedom of expression, on the one hand, versus the right to protect one's reputation, on the other, is a question of a balancing act. As we all know, in the United States of America, the balance is struck ridiculously differently. People can say anything they like in America about anybody else and it is freedom of expression. It is not actionable unless the plaintiff establishes that the defendant did not believe a word of it when they said it. In other words, that was akin to a malicious falsehood. That is the test in America. There was a case of President Trump in his primary campaigns hinting that one of his colleagues had pushed his wife down the stairs. You could not get away with that in Ireland, but he got away with that because he is entitled to say that is his view and that he had probably pushed her down the stairs. Unless the would-be rival in that case said Trump did not believe that and unless he could prove that Trump did not believe it when he said, it would not be actionable.

There is a balance to be struck. The balance is set out in the substance of our law, but it is not to do with a jury. The jury is not the problem with establishing a balance between the rights of the media, and the rights of the individual about whom they write or the rights of people who are defamed on a casual basis day to day, for example by a store detective or somebody like that. It is not a question of the jury determining the balance between the right of free speech and the right to protect one's reputation. The jury has to decide the case in accordance with the law of defamation. As for pointing out that there is a balance to be struck, Ireland has struck that balance. It is noteworthy that the Bill deals with section 26 of the Defamation Act 2009 and proposes to change it. I agree with the changes that are proposed, but they are changes to the law that will bind a jury just as much as anybody else. Without disclosing what went on in government, I can tell the Minister that the present state of section 26 of the 2009 Act was radically affected by people other than me in government at the time who did not like Reynolds defence and wanted to trim it down. I was the liberal on that occasion. I will not identify anybody as being illiberal but the Minister can draw his own conclusion. I do not want to trespass onto the defence set out in section 26 of the Act, but the defence is a defence to be observed by either a judge or a jury. Therefore, applying the proposed amendment, there is no difference between what a jury properly instructed should do and what a judge properly instructed should do in that context.

Assault cases can be brought in the Circuit Court. If somebody alleges that they have been beaten up by a member of the Garda, they are entitled to go to the Circuit Court if they wish, but they are also entitled to go to the High Court if their case merits that. To say we have to get rid of juries in the High Court because they are not available Circuit Court is a false argument. People go to the High Court and ask for a jury because they do not want a judge, High Court or Circuit Court, to decide their case. They want a jury to do it. It is important that when it comes to the forces of law and order and other cases, jury trial be preserved in the High Court. The mere fact that a person can bring an assault claim in the Circuit Court does not justify abolishing jury trial in the High Court.The argument that it is not available in the Circuit Court simply does not carry the day. A feature of the amendments tabled by the Opposition and not by the Government strangely is the serious harm threshold. That is the curious thing. The Government is not adopting the serious threshold for most plaintiffs - only for companies and only in very limited circumstances. If we did introduce a serious harm threshold, as the Opposition amendments are claiming with regard to this Bill, the argument that it is a waste of time having a jury trial in the High Court would evaporate. What I would call silly defamation cases, which are often brought, for example, because they mixed up two photos or got someone's age wrong, are the kind of cases that the poor embattled media have been fending off for years. We have an opportunity in this Bill to simply say there should be a serious harm threshold for everybody. Someone cannot waste a court's time about remarks that were shouted across at him or her in a pub unless on the test we are proposing, lasting and serious damage is done to the person.