Michael McDowell (Independent)

I move amendment No. 4:

In page 7, between lines 14 and 15, to insert the following: “6. Nothing in this Part prohibits the trial in the High Court with a jury of a claim in defamation in conjunction with any related claim arising substantially out of the same alleged facts and circumstances which would otherwise be triable by the High Court with a jury.”.

This proposed section is to insert in Part 3 a provision that, "Nothing in this Part [which effectively abolishes jury trial in the High Court] ... [prevents] the trial in the High Court with a jury of a claim in defamation in conjunction with any related claim arising substantially out of the same alleged facts and circumstances which would otherwise be triable by the High Court with a jury.”What I am dealing with here is a situation where defamation might also be tried by a jury in conjunction with, say, a sexual assault or an assault of a non-sexual character, for that matter. I mentioned the logic of this. If we are going to have, for instance, an action for malicious falsehood, I do not see why there should not be at the same time a right of the High Court to have a jury entertain in conjunction with that the lesser tort of defamation. If a jury is going to be empanelled to listen to one bit of evidence and decide one particular case, why is it that it cannot at the same time consider whether damages should be awarded for defamation as well? We could have people being assaulted in circumstances where a High Court jury action was justified and the facts before the court might also include the making of defamatory statements by the defendant. In those circumstances I cannot see any good reason the jury determining the assault case should not also have the right, based on its appreciation of the evidence, to deal with a claim in defamation.

There are plenty of examples of this which occur to me. Supposing somebody was accused of, say, sexual assault and battery, and that is triable by a jury, why could a jury listening to that case not come to the conclusion the perpetrator had, in the course of the events before the court in the assault case, stated something wholly untrue about the victim of the assault? Why would there have to be a second trial of the defamatory part of the evidence? I do not see any good reason that should happen. The Minister earlier mentioned the privacy case where one effectively has to elect, in relation to serving notice of trial, between the right to a jury trial and the right to adding in a breach of privacy claim. People should not be forced to that election. If we are going to have a jury decide a serious sexual assault, a serious Garda assault, or whatever, if in addition to the physical actions that took place a statement was made about the victim of a grossly defamatory kind, I cannot see any reason the jury should not consider that as well and take that into account when awarding damages, if it accepted the evidence of the alleged injured party. We can have a situation, as the Minister says, for instance in a privacy action, that if you want to claim damages for breach of privacy, you cannot at the same time run it in conjunction with a defamation action, as things are happening at the moment. That is unfortunate. If we are going to empanel a jury and it is going to listen to all the evidence, there is no reason they should not also consider whether, in addition to the substantive case that is triable before them, there has also been defamation which merits an award of compensation.