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

They might be told they are better off going in front of a jury because overwhelmingly the jury is going to like and respect them. However, that gives a distortion to what the administration of justice is about. It is not the administration of popularity. Cases are not determined on the basis of who is more popular or who is less popular. Cases are determined and justice is administered on whether there has been a cause of action or a breach of a right that a claimant has and what is the remedy.

We are reading too much into the presence of having a jury. No one suffers a miscarriage of justice in the civil sphere because they do not have a jury. I mentioned at the outset that we categorise causes of actions in our legislation in the Courts of Justice Act. We also categorise types of cases by thresholds. If a person is taking a defamation case and they believe their case is worth less than €75,000, they go to the Circuit Court. They do not get a jury in the Circuit Court. It could be a serious defamation, but because it is published to a small group of people, they may believe it is safer to go to the Circuit Court.Defamation cases are heard in the Circuit Court on a weekly basis. We cannot say that the people are not getting fair justice there. They are getting fair justice, and they are having justice administered by judges sitting alone. We need to be careful about emphasising the bias of judges. Everyone has their own prejudices. Everyone has their own personal biases, but when it comes to administering justice, every person who takes an oath has to administer and determine a case based on the facts produced before them. If we go back and look at some of the recent examples, I will not mention them, but recent prominent defamation actions were heard by juries. There was one very prominent case a couple of months ago involving a retired Member of the Houses of the Oireachtas. My view is that had that case been heard by a judge sitting alone, the result would probably have been exactly the same. A judge, however, would probably award more damages. Juries, when they come to assess damages, are probably not as generous, in my assessment, as judges when it comes to the award of damages. Ultimately, cases are determined on their facts. They are not determined by whether a person got a jury for it or a judge sitting alone. If a person has a good defamation action, if his or her reputation has been damaged by a publication that is false, he or she will get a remedy from the courts.

I generally avoid talking about myself or my past, but I was involved in defamation actions when I was a practising lawyer in front of judges sitting alone. From the point of view of the claimant, the outcome was very satisfactory. I am concerned that there is a view abroad that if judges are going to hear cases, plaintiffs will not get fairness in respect of it. That is not the case. Cases will still be heard fairly, and justice will be administered. Being blunt, the reason for this amendment, which was introduced, as I said, over a year ago when the defamation Bill was brought in to the Dáil, is for efficiency purposes and cost purposes. I do not think this is illogical, and I do not think it is going to result in unfair trials or people not getting justice. I am sure Senator McDowell will agree with me that no matter what the outcome here, if a person is a claimant taking an action in defamation before the superior courts, he or she will get justice if there is just a judge hearing it in the same way as today people get justice in the Circuit Court if they bring defamation actions.

I have listened very carefully. In terms of malicious falsehood as a cause of action, people have to prove special damage. They have to actually sustain losses in respect of it. This is an issue. If I had been around when the Bill was being initiated, I probably would have put in a requirement that a cause of action and malicious falsehood would also lose the right to have a trial by jury. However, we need to proceed with the Bill. It is not illogical to proceed with the removal of defamation cases from juries. It will still be the case that assault cases will be determined by juries. However, I would have thought that the most important cases that come before the High Court are constitutional actions. Constitutional actions are enormously important. A former Senator in this House, Senator Zappone, took a constitutional action; she lost. It was never suggested that she got treated unfairly or that she lost because she did not have a jury. Another former Member of this House, Senator Norris, took a very famous case here in Ireland and lost. It was never suggested that he lost because he did not have a jury. Had his case been heard before a jury, it is probably the case, regrettably, that the outcome would have been the same. Therefore, I do not think it is as consequential as Senator McDowell has indicated in his contribution. The motivation behind it was predominantly to speed it up and cut down on costs.

My concern about Senator McDowell's amendment relates to the issues I have highlighted. How do we determine what is public interest? How do we know what is in the interests of justice when it comes to deciding whether we want a jury or not. The only other way we deal with this issue is when we use, in a criminal context, the Special criminal Court. Sometimes people challenge the fact that their claim has been dealt with by the Special Criminal Court, and they want what they regard as their constitutional right to a trial by jury in the criminal offence to operate. In that instance, however, the basis upon which a court determines that, in fact, it is appropriate for the Special Criminal Court to hear it is that there will be both evidence and a submission from the DPP to the effect that there may be threats to the jury because of the nature of the criminal act or the involvement of the accused in certain activity that it merits there being a non-jury court. That is the evidence that is set out here in that context for a Special Criminal Court application.

What is going to be the basis here for the application before the High Court to say legal representatives want a jury because their client is not popular or is popular, or do not want a jury because it is too complicated, or want a jury because it is too complicated and they think they will be able to present it in a more simple way to a jury? I do not know on what basis someone would look for a jury. That is why, historically, when we look at the other causes of action and the categorisation in the courts of justice, it is always just on the basis of what is in the schedule and the causes of action.

Personal injuries are gone from juries. Breach of contract is dealt with by a judge sitting alone. Defamation is with the jury at present, and we are on the basis of this piece of legislation going to remove it into another category. Categorisation is the most appropriate way to deal with this rather than trying to do an abstract assessment as to whether it is in the interests of justice for a jury to hear a particular case. If we start going down that route, we are going to have a hierarchy of administration of justice in some respects such that when it comes to civil actions, a civil action with a jury is in some respects more sacrosanct or reliable than a civil action heard by a judge. They are both the High Court findings, and we need to preserve the integrity of that. With the greatest of respect to Senator McDowell, who I always listen to, I am not going to accept the amendment.