Abolishing jury trials of defamation cases is ‘inherently undemocratic’, says retired judge

Proposals to abolish jury trials of High Court defamation claims are “inherently undemocratic” and would mean “very serious consequences” for the legal rights of citizens and the administration of justice, a retired judge has told an Oireachtas committee.

Mr Justice Bernard Barton, who presided over many High Court jury trials, argued that concerns about excessive jury awards in defamation cases have been addressed by the Supreme Court in a decision providing guidance on appropriate damages.

Legislators should wait and see how that guidance plays out, he said.

While concerns about excessive jury awards for defamation appeared to be the main motivation for abolishing juries, the appeal courts have overturned a jury award in just four cases, he said.

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Juries decide facts and their removal from defamation cases would effectively mean the public is removed from involvement in the administration of justice, he said.

The Joint Oireachtas Justice Committee heard submissions on Tuesday from the judge; representatives of the Bar of Ireland; Karyn Harty, head of disputes with law firm Dentons Ireland; and senior counsel Mark Harty as part of its pre-legislative scrutiny of the general scheme of the Defamation (Amendment) Bill.

The general scheme makes several proposals for amendment of the defamation laws, including abolition of jury trials and the introduction of a “serious harm” test.

During the hearing, Sinn Féin justice spokesman Pa Daly TD said his party opposes the abolition of juries. When jury trials for most personal injuries cases were abolished, that had not led to any reduction in insurance costs, he observed.

Outlining the Bar council’s position, Declan Doyle SC said the council, because it is a representative body, was not taking a definitive view on the general scheme of the Bill as a whole.

The Bar acknowledged reform is needed but considered the proposed amendments are significant, “far-reaching” and appear weighted more in favour of defendants than plaintiffs.

It said the Bar would not support total abolition of juries for reasons including the importance of peer review of claims and concerns total abolition would lead to a general increase in cost of litigation.

The Supreme Court, in its decision in Higgins v the Irish Aviation Authority, means the High Court can for the first time give juries clear bands indicating the appropriate sum of damages. The Bar considered juries might perhaps be retained as arbiters of fact and damages decided separately.

Other concerns included about the failure to define “serious harm” and whether there was a need at all for such a test. The unintended consequences could mean higher damages and costs, it was submitted.

The Bar also raised issues about proposed changes to the defence of fair and reasonable publication on a matter of public interest. The changes would predominantly make that latter defence a defence for journalists and there was an issue about the desirability or otherwise of having different statutory tests for media and non-media in the context of that defence, it said. Most defamation cases are non-media cases, it noted.

Other concerns included about enacting anti-SLAPP (Strategic Litigation Against Public Participation) measures before finalisation of an EU directive on SLAPP and the formalisation of an EU approach to the issue.

In her submission, Ms Harty said Dentons focuses on media defence and it welcomed proposals to reform the defamation laws.

While generally supporting the scheme of the proposed reforms, the firm believed some matters appeared unnecessary, she said. Dentons did not support the proposed abolition of jury trials for defamation but appreciated others in the industry took a contrary view. The firm also had concerns that the serious harm test may not have the intended outcome in practice and favoured an alternative approach of making defamation claims actionable only on proof of special damage.

Mark Harty, an experienced defamation lawyer, said the report before the committee on the proposed defamation reforms “relies heavily” on reforms of defamation laws in England and Wales in 2013 but contains no analysis of the impact of those. Defamation legal costs in the High Court in England are now “many times” greater than here.

Experts estimate the costs of a two-day defamation action in London are now between £1 million to £2 million, which dwarfs figures here, he said. “In effect, only the very rich can pursue an action for defamation in England and Wales.”

Mr Harty strongly agreed that juries should not be abolished and said the Higgins decision would correct the “most significant” complaint, that of excessive jury awards.