Gerard Craughwell (Independent)

I thank the Minister for his patience in bringing this Bill forward. There are a couple of things I want to address at the outset. In drafting this legislation, part of the purpose behind it was to simplify things and increase clarity where possible but there is a huge media interest in the outcome of this. The various publishing bodies and so forth expect to come out of this pretty good, from what I can see. Maybe I am wrong and the Minister will disagree with me. I am looking at key Irish cases over quite an extended period where potential defamation took place but as I said to the Minister last week when he was here, it is all very well telling somebody they have been defamed and they should take the defamation to the courts but not everybody can afford to go to the courts. Even those who can and who find themselves up against very large or very wealthy organisations may be unwilling to do that.

One thing I would have hoped this legislation might have dealt with was the ambiguous wording used in media, the use of innuendo in media and the use of phrasing or cautious phrasing in media where the liability is not perhaps 100% evident at the outset. I am looking back at key Irish cases like Berry v. The Irish Times in 1973. They were concerned whether the article's innuendo conveyed a defamatory meaning. The court in that case held that even if the wording was indirect, liability may arise if a reasonable reader could infer a damaging meaning. This is where the courts have shown, in my view, great maturity and understanding. In that particular case, it was vagueness but that vagueness did not protect the publisher. In Travers v. Sunday Newspapers Ltd., the plaintiff argued that a vague reference in a newspaper article implied misconduct. The High Court examined whether the words were reasonably capable of bearing a defamatory meaning. The case highlights how Irish courts scrutinise subtle, suggestive language and in that case the plaintiff was successful. In Corrigan v. Kevin P. Kilrane and Company Solicitors in 1997, the solicitors claimed defamation based on implied allegations in correspondence. The court considered whether the wording, though not explicit, would lower the plaintiff's reputation in the eyes of reasonable people. It shows that even professional communications with vague phrasing can be actionable. Another case against Sunday Newspapers Limited, Gilchrist v. Sunday Newspapers Ltd., concerned whether the publication's generalised statements about wrongdoing were linked to the plaintiff. The court analysed whether the vagueness still allowed readers to identify the plaintiff and infer defamatory meanings. An interesting one is the case of Stillorgan Gas Heating and Plumbing Limited, where the defamation took place in a social media context. In that particular case, the High Court ruled that the company had been defamed and an award of €40,000 was the outcome. It would have been useful if we could have included in the Bill in some way in relation to vague comments, innuendo and so forth that the liability of those publishing such things should not be in any way protected.

On reading section 34A, which amendment No. 11 relates to, the Minister has been very careful in trying to cover all the aces. The specific area I am concerned about is 34A(d), dealing with bad faith. The amendment tabled by Senator Keogan would make a couple of changes. In the first paragraph, the Bill states, "pursue unfounded claims and that are not brought to genuinely assert or exercise a right, but that have as their main purpose the prevention, restriction or penalisation of public participation". Senator Keogan's amendment would change it to "have the effect of preventing". In 34A(d) on the use of bad faith, the Minister has attempted - I think he does a fair job - to cover what bad faith is. I believe the Minister said the previous day he was here that it was too broad to finish on the idea of just using bad faith or procedural tactics. I think he thought it was too broad. In the Bill, he has tried to narrow that down and give a definition of what would be regarded as bad faith or procedural tactics. I have had a few days to look at it. One thing that concerns me is the subjectivity of the term "bad faith". While I understand the Minister is trying to narrow it down, are the hands of the Judiciary being tied in doing so, in that the criteria set out in the Bill must be met? Senator Keogan's amendment allows a lot of discretion on the part of the Judiciary to decide what is and is not bad faith. If we look at the motive behind the notion of bad faith, determining bad faith requires inferring a claimant's intent, which is inherently subjective. Another person may think it is a reasonable argument but the tying down of various things concerns me. The Bill talks about "such as delaying proceedings, fraudulent or abusive forum shopping or the discontinuation of cases at a later stage of the proceedings in bad faith".Let us deal with the last one first. I may go so far in a legal action, which I am paying for, and my lawyers bring me to one side and say to me, "You are not going to win this, you have a chance now to pull out of it and walk away with the least possible damage to yourself, but if you continue on the chances of losing are quite significant." At that stage I have to make up my own mind whether I will go ahead with it or not. On the other hand, the defendant in a case may decide to use every tool in the box in order to delay the case, from my perspective, but from their perspective they are taking every step they possibly can to ensure that their defence is up for running in court. For example, this may involve using discovery. Sometimes discovery leads to delays where the defendant decides they are going to frustrate the discovery or, in some cases, it may be the simple fact that it takes time to get documents. If I am the plaintiff and believe you have documents that will prove my case, I seek discovery on them, the High Court orders discovery and you go to try to find those documents. What I believe you have may not be factual or it may be the case that the documents I am referring to are long since destroyed. I remember a noted senior counsel one time saying to me, "We settled a court case at the Supreme Court." The case had started as an unfair dismissal and it finished up as a Supreme Court case. They settled, which I could not understand, so I asked the senior counsel, "How did you settle when we won the whole way along?" He said, "Every court case is a 50:50 case. At the end of the day, it is how the case is presented." From that point of view, what I believe is bad faith on your part may not be bad faith at all.

Looking at the chilling effects on the claimants, fear of being accused of bad faith may deter an individual from pursuing a defamation case. Some people are very sensitive to words. Words mean a lot. In the natural course of a defamation case in the High Court I may be accused of bad faith, or I may be accused of bad faith before I ever get inside the door of the court. Very often, these cases are between people who knew one another or there was a vague relationship of some sort or other and suddenly one of them is being accused of bad faith. The person's good name is on the line already because they are in there trying to defend it and now somebody is accusing them of bad faith. That may cause them not to go ahead with a defamation case.

The Minister said here last week that everybody has a right to the courts and everybody can have a case settled in the courts. I may be wrong, but if bad faith is something that is going to haunt me, does that undermine my constitutional right to take a matter to the courts? Very often there is a certain amount of ill will towards the publisher of something that you or I may regard as defamation. There is also the situation that there are safeguards within the system already. Do we need to further define those safeguards? Courts already have tools available to them to strike out cases that come before them. I have no doubt that senior counsel on both sides will argue for a strike out at the earliest possible situation. We should remember that if a case has been struck out, there is the Court of Appeal and the Supreme Court, if one feels that important about it. Adding bad faith as a separate ground risks making some of the tools that are available redundant for all intents and purposes. I am asking the Minister as he is the man who knows these things. Are we in any way trying to limit the discretion of the Judiciary in their interpretation of what may or may not be bad faith?

On procedural tactics, the Minister in his Bill has set out what procedural tactics he wants to define in the Bill and make it fairly easy for those of us who might take defamation cases to understand but, as I said earlier on, procedural tactics could encompass legitimate litigation strategies. A person may require an injunction to stop something happening. A person may require to go to the courts and make applications. Again, as I mentioned, a person could look for the discovery of documents but not get the discovery that he or she feels entitled to and, as such, have to go to the courts and seek the assistance of the courts to get the documents that are being sought. From that point of view, these are genuine honest tactics. Surely what we should do is stop at the term "bad faith" and procedural tactics and allow the Judiciary to decide whether or not what a person is doing, as a plaintiff or defendant, is in bad faith and is a misuse of procedural tactics. What one judge sees as a delay, another judge will see as a fair system or fair means of establishing a case in order to run a legitimate case in the courts to the best possible advantage. I always think when we talk about court cases that both sides are right until one side is proved wrong, and that is always the difficult one.

Defendants could weaponise the provision by alleging the plaintiffs are using procedural tactics. How many times have we heard it from laypeople within the public that they are deliberately setting out to delay my system and they have slowed the system down? There is some justification for that claim. Some cases go on for years on end but are they genuinely slowing it down? Surely we should leave that to a judge to decide rather than prescribing what is procedural tactics at the end.

When it comes to the litigation process for defamation or whatever, I constantly return to the fact that money is needed to take any case to the High Court or any court for that matter. If a defendant is well resourced - a large company or a major national publisher, for example - it can ensure that it delivers the best possible defence for itself by what would seem to me, as a plaintiff, to be deliberate procedural tactics of delaying my case. Is that fair? Again, we should ask the Judiciary to make a decision on that.

On fair trials, this is something that frequently comes up. Early dismissal based on alleged tactics may deny the plaintiff the opportunity to fully present evidence. I do not know. The Minister has appeared in court on behalf of clients. Where a case is struck out, does the client not feel that in some way he or she has been dealt a grave injustice by not having the full rigour of his or her case examined? Certainly anecdotally speaking to people who have been through court cases I have heard these things said very many times. I have to admit that mainly it was in cases of employment law, in which I was involved at various stages in my career.

The other thing is that defamation cases often hinge on a nuance or a context of credibility, and matters need to be tested at trial, not struck out prematurely. I wonder, looking at the definitions, is there a chance that a case would be struck out without being given its 15 minutes or five years in the courts to have the case fully and properly examined by a judge? We are not going to have juries so we are going to depend on the judge in these cases. Are we running the risk of those who feel they have been hard done by having to incur additional costs to lodge an appeal where a case has been struck out? Anecdotally, we know that cases that have been struck out at one level actually do succeed at another level. I am mindful of a case concerning a young boy in Cork and an inoculation.The case went on for ten years, and at the High Court it was struck out. Eventually, when it went back to the Supreme Court, as far as I recall, there were millions involved in the settlement at that time. If it can happen in a case for personal injuries, it can happen in any case.

Going back to the broader policy of things, access to justice is what it is all about. We should try to be as broad as we can and trust our Judiciary because we have skilled lawyers in this country. If a judge errs or if your lawyers feel a judge erred, then they have the capacity to run an appeal on your behalf, and appeals have been successful. I am a little concerned about the term "bad faith" on its own, but if we are to have that section in the Bill, I would rather it was just "bad faith and procedural tactics" with nothing else and left to the Judiciary to define for themselves what they believe is bad faith and what they believe is a misuse of procedural tactics.

There are other things I want to say on other sections but I will leave it for the Minister to respond to now and I appreciate his time and patience on this.