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

I thank Senator McDowell for his interesting contribution. At the heart of it is his submission that the proposal within the Bill is illogical because we will have a situation where defamation actions will now not be heard by a jury, whereas other actions, such as assault, could be heard by a jury.

It is important to emphasise at the outset that when you look at the civil law system that operates in Ireland, we have categorisation of causes of actions and thresholds within that legal system. For instance, if the Senator goes back to the judicatory Acts and looks at the Courts of Justice Acts, he will see that there were certain causes of actions that entitled a claimant to have a jury. The vast majority of civil actions, however, did not give any entitlement to a jury. If one considers, say, a breach of contract claim or a standard tort claim regarding nuisance or trespass - not trespass to the person but a trespass claim - none of them, historically, merited a jury. We have had many significant decisions of these superior courts that have not been determined by juries. I refer to some of the most important decisions we have seen in the country such as the McGee decision, the Ryan decision and the bizarre Norris decision. All of those decisions, which had a huge impact on Irish jurisprudence, were decisions that were delivered without a jury. The reason they were delivered without a jury was because, historically, as I have said, our legal system categorises certain offences in the civil action as having an entitlement to a jury, and the others as not having an entitlement.

Senator McDowell says that is illogical. I do not think it is illogical but what it indicates is that the Oireachtas developed a determination - and prior to that it was developed through common law - that we would have juries in certain areas and we would not have juries in other areas.Prior to 1980 or a little bit later, there were juries for personal injuries actions. To use Senator McDowell's example, if the choirboy was the subject of the negligence of the bishop who crashed into him or did some other act as a result of negligence, there would be no entitlement for the choirboy to have a jury in his action because negligence was to be determined by a judge without a jury. Historically, personal injuries actions did have juries. We got away from them and removed them because we were seeking to introduce efficiency into the system. It is not illogical for the Oireachtas to decide that assault actions will be determined by a jury and judge but defamation actions will be determined by a judge sitting alone. We have determined that breach of contract claims should be determined by a judge sitting alone.

Very many of the issues Senator McDowell mentioned, such as, perhaps, perceived bias on behalf of a judge, can be present now because of the cause of action that can be taken. There could be a highly unpopular individual who takes a breach of contract claim. He is going to have his claim determined by a judge. There is nothing more he can do about that because we do not permit breach of contract claims to be heard by a jury. It is that the Oireachtas is deciding there are certain types of actions in the civil law where a jury will play a role and there are others where they do not. It is for the Oireachtas to decide what they should be.

Senator McDowell will agree with me that if we look at all the cases that are heard in the superior courts whether the case is heard by a judge sitting alone or by a judge and jury, a person is entitled to and will receive justice. There have been many historic cases that have been heard by judges sitting alone where there have been unpopular causes or issues which people may have perceived would not get a favourable outcome from a judge where they have received justice. It is important that we emphasise this, and I am sure Senator McDowell will agree, that if a person's case is being heard by a judge sitting alone, they will still get justice. It is not the case that somebody who takes a defamation action that is heard by a judge sitting alone will not get justice. It is an option that is available at present and the Oireachtas is making a decision to remove that option. The logic and reason behind this is because there is a belief that jury actions take longer than an action with a judge and a jury. It is unquestionably the case that they do take longer. If they take longer, they are going to cost more.

I wish to deal with an aspect of Senator McDowell's amendment. I express a concern as to how it would operate in practice. The Senator's amendment proposes that the default position would be that there would not be a jury in a High Court defamation action. However, the High Court could order that the case should be heard with a jury if the High Court was of the view that both the public interest and the interests of justice would be better served by its trial with a jury. What is inevitability is going to happen if this amendment is agreed is that we will have another interlocutory hearing that will take place immediately on service of the notice of trial. At present, what happens is the plaintiff serves a notice of trial and states that it is going to be trialled by a judge and jury. What would happen if this amendment were agreed, however, is that once the plea deals were closed and the notice of trial was issued, an interlocutory application would be brought before the High Court, predominantly by plaintiffs taking cases, stating this was a case where the High Court should direct there be a jury because it was both in the public interest and in the interests of justice to do so.

Again I make reference to what I said was a weakness in the previous amendments. There is no statutory architecture set out here to inform a High Court judge as to what is the public interest and why the interests of justice merit the selection of a jury. Senator McDowell referred to a number of cases. In fact, I can probably give a better example of it, but I am going to try to avoid that. Let us take the example of a prominent politician who has been defamed. Sometimes I think politicians would be hesitant about going before a jury because, by nature, we are partisan. No matter how popular someone is as a politician, are they going to have 60% of people who are supportive of them? Probably not, let us be realistic about it. There sometimes can be a concern on the part of a politician about going before a jury. Similarly, however, politicians may not want to go in front of a judge because they represent a political viewpoint that may not be popular with the judge. All of these are not questions about where the interests of justice lies. They are tactical calls that Senator McDowell has made on many occasions when he has advised people in respect of defamation actions. Sometimes, it is believed it in the interests of party to defamation to have a jury. Other times, it is believed that it is the interests to have a judge sitting alone. I do not see how you can say that the interests of justice in a particular case merits having a jury.

Rather than using an example of anyone else, I will use myself as an example. In the unusual circumstance that I were to be the person who Senator McDowell covers here, I was taking a defamation action, I was the Minister for justice and I decided I wanted a jury in this case because I was concerned that the judges would not give me a fair going, would that be a basis for me to get a jury because I was a politician and therefore it was in the interests of justice that I get a jury? What are the interests of justice that are going to determine that an individual has an entitlement to a jury? Is it somebody who is highly unpopular? Is it in the interests of justice that they do not have a jury but have a judge because they are so unpopular in the public realm, they are better off and it is in the interests of justice that their case is heard by a judge sitting alone? When we use the terms "public interest" and the "interests of justice", they have a meaning in certain statutory mechanisms for the purpose of a discretion being exercised by a judge, but that is when the judge knows what the statutory architecture is. There is no understanding here for a judge as to why it is in the public interest that a politician should get a jury. Why is it in the public interest that somebody who is very unpopular generally with public should get a jury? Why is it in the public interest for somebody who is a well-known celebrity and enormously popular - I do not know who the most popular person in the country is; it might be Shane Lowry - let us say somebody who is an outstandingly popular person-----