Jim O'Callaghan (Dublin Bay South, Fianna Fail)

I thank Senator McDowell and the other Senators for putting forward this amendment. The objective here is to try to deal with a situation which can arise when, if defamation is removed from a jury, it will still be permissible to be heard by a jury if other causes of action which are heard by juries are taken. Senator McDowell's example probably expresses it most clearly. He says if this legislation is enacted as it has been approved in the Houses up to now, the default position would be that you would not be entitled to a jury for a defamation action. However, under this amendment it is proposed that if another cause of action which gave rise to a right to a trial by jury was engaged, the defamation action could be heard by it. As the Senator said, he is thinking of circumstances where, for instance, somebody is assaulted, takes an action for assault, that assault action in the High Court is heard before a jury. They may also want to take a defamation action if a defamatory publication was made.

Can we just assess how that would be dealt with if this amendment were not enacted? As I said earlier, we have had numerous examples of this operating where you have two different causes of action taken and only one permitting you to get a jury trial. At present, if you sue for damages for defamation and damages for breach of privacy, the latter does not give you an entitlement to a jury. What happens in general is that the plaintiff opts for a trial by jury for the defamation action. All the evidence is heard, including the evidence, perhaps, in respect of the privacy action, but ultimately the judge will just determine the cause of action in respect of the privacy claim while the jury will determine it in respect of the defamation claim. As such, it is not a mischief that is unknown to the legal system and it is a mischief that is engaged and responded to by the legal system.

I do not think it is necessary to bring forward this amendment and, consequently, I regret to say to Senator McDowell and his colleagues that I will be opposing it. I also have a concern that it could be used a statutory provision to ensure the intention of the Oireachtas is got around and that, in fact, for most defamation actions a plaintiff would be able to ensure trial by jury. I am aware that is not the intention of Senator McDowell's amendment, but taking into account what the statutory provision would allow, it would be possible, I suppose, for individuals who wanted to sue for defamation to put into their plenary summons a claim for damages for malicious falsehood. They would have to establish a basis for a malicious falsehood claim, but once they established that claim they would be able to bring a defamation action before a jury and that would be defeating the purpose of the main statutory enactment contained in this Part. Regrettably, for that reason I cannot accept the amendment. It probably would have the effect of defeating the purpose of the amendment that has already been agreed by this House.