High Court bench does ‘not represent a fair cross-section of society’, says retired judge

Shortly before he retired from the High Court bench, Mr Justice Bernard Barton annoyed some colleagues when he said judges live in a “rarefied” atmosphere.

His comment, Barton tells The Irish Times, was made in the context of his opposition to draft legislation to end jury hearings of defamation cases.

He accepts not all judges were brought up, as he candidly says he was, “with a silver spoon in my mouth”.

Barton grew up in Dublin, had a private school education and was driving a Jaguar in his early 20s when working for his father’s luxury car importation business before pursuing a career at the Bar.

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“I was probably thinking of myself, having a dig at myself, when I was talking about a rarefied atmosphere,” he says. “I lived in a big house with its own grounds and had no concept of the lives of many of my fellow citizens. I lived in a rarefied atmosphere. Of course, not all my colleagues had the same background.

When aged eight or nine, he was ‘thrashed’ by a teacher after taking time off to watch Princess Margaret’s wedding. ‘The teacher was just horrified. That’s how I came to realise I’m a bit different’

“My point was that a jury represents a fair cross-section of society. Anybody who knows anything about the High Court knows it does not represent a fair cross-section of society.”

Defamation is something that takes place in the public domain, he says. “It is your reputation which is injured in the minds and eyes of your community, so who better to make the decision than members of the community?”

Growing up in Dublin in the 1950s in a family of “southern unionists” was “kind of bizarre”, he says. His family were proud of their British identity – both his grandfathers were English and served with the British Army – but “kept it in the house”.

When aged eight or nine, he was “thrashed” by a teacher after taking time off to watch Princess Margaret’s wedding. “The teacher was just horrified. That’s how I came to realise I’m a bit different, but my parents did their best to make us blend in.”

‘Cut me off’

Having completed a law degree, he worked in the family motor business for a time but continued to hanker for a Bar career. When he finally took the plunge, he was aged 27 and married with a child.

On the day he left the family business, his father put out his hand. “I thought it was to shake it but he said: ‘Keys’. That was the end of the car. I had to walk home. That was the end of the finances too.

“Years afterwards, I said, ‘Why did you do that, Dad, you cut me off from money, cars, everything like that?’ He said it was like the drawbridge going down, you had to do it yourself. So I did: I worked, lectured in college, did tutorials. He was very wise, although it didn’t seem like that at the time.”

Barton’s wife, who worked in a bank, was the main breadwinner during his early years at the Bar, where he had a successful career before being appointed to the High Court bench in 2014.

He managed the High Court civil jury list for several years until his retirement in March 2021 and was the presiding judge in several high-profile defamation cases, including businessman Denis O’Brien’s failed action against the Sunday Business Post.

His motivation for this interview, and for making submissions earlier this year to the Oireachtas Justice Committee as part of its pre-legislative scrutiny of the Defamation (Amendment) Bill, is his concern over some of the proposed reforms.

The proposals include the abolition of juries in defamation cases; simplification of the defence of fair and reasonable publication on a matter of public interest; a more media-friendly defence for an unexpected defamatory comment during a live broadcast; and measures to deal with strategic lawsuits against public participation.

Barton welcomes some of the proposals but has concerns about others, particularly for removal of juries.

“I think a lot of my colleagues raised eyebrows about me speaking out because I would probably be seen as a great supporter of the establishment, not in the pejorative sense, more in the sense of holding the line,” says Barton, who was a member of Fine Gael before being appointed to the bench.

The reason he decided to speak out was “because I feel passionately about our democracy”.

‘Miles apart’

The draft legislation is in line with recommendations of the March 2022 report of the review of the existing law, the Defamation Act 2009, but what he read in that report, says Barton, is “miles apart” from his experience of defamation cases.

Debates about having juries have been going on for hundreds of years and the rights involved go back to the Magna Carta, he notes.

The Government was under fierce pressure at the time to provide a situation where insurance would be available to everybody at a reasonable cost. I don’t object to that but, two years on, where are the savings? My premium has gone up

—  Mr Justice Bernard Barton

He endorses views of the 18th century English jurist, William Blackstone, that juries protect litigants against “judicial caprice”, give the public the share they should have in the administration of justice and prevent encroachment by the rich and powerful.

“We’re basically saying, when we are removing juries, we are going to take this right away from the citizen, we’re going to hand the administration of justice over to a single unelected officeholder.”

The proposed reforms are similar to ones introduced in England in 2013 but the fact the law in Ireland and England is different does not appear to be appreciated in the report, he says. “We have a Constitution and constitutional rights which they don’t have in England. This ‘one size fits all’, ‘this happened in England, let’s go with that’, it’s a lazy approach.”

The experience in England since then has been “dreadful”, he says. Referencing some high-profile cases heard by judges alone, including the ‘Wagatha Christie’ libel trial involving Rebekah Vardy versus Colleen Rooney, which Ms Vardy lost, he says: “I wonder how much those cost?”

Getting rid of juries is presented by the report, the media and insurance companies as “a panacea for all ills” but that does not reflect the reality he saw on the bench or the experience in England, he says.

The report cites a small number of cases, including a £300,000 damages award in 1999 to Democratic Left MEP Proinsias De Rossa against Independent Newspapers, as examples of “mad” jury awards, he says.

Those were all decided under the Defamation Act 1961, not the 2009 Defamation Act, he points out. “When I say ‘Show me a case where there was a mad award after the 2009 Act’, they can’t. ”

‘Minuscule’

Between 2012 and 2020, there were 74 cases under the 2009 Act and the only award that attracted much attention, he says, was of €10 million made in 2010, reduced on appeal to €250,000, to former Kenmare Resources deputy chairman Donal Kinsella over a press release issued by the company.

The number of appeals resulting in reversal of a jury decision “have been minuscule”, he adds.

There is “no mention” of many cases decided since De Rossa with “no problem”, he says, including the “seminal” Kehoe v RTÉ decision, where a jury awarded former Sinn Féin councillor Nicky Kehoe €3,500 damages over comments made about him during a live radio debate in 2015.

Juries are wrongly blamed for delays in getting cases on when the problem he faced when managing the jury list was not having enough judges to hear cases, he says.

He welcomes the proposed simplification of the defence of fair and reasonable publication on a matter of public interest, saying that essentially means introducing the concept of “responsible” journalism into legislation.

That should help address media concerns the current law is weighed too much in favour of protecting the right to a good name against the right of free speech, he believes.

He believes another proposal, to introduce a “serious harm” test for defamation, will add unnecessary layers to cases and increase costs.

He strongly supports an “even playing field” when it comes to liability for defamation.

The situation where internet platforms can argue they are not responsible and cannot be sued for defamatory posts on their platforms is “not sustainable”, he says. “We cannot have a situation where one section of the publishing media has this exposure, or at least has to be careful about balancing rights, and another is saying ‘nothing to do with me’.”

‘Fundamental problem’

A “fundamental problem” with the proposed reforms is they are based on a report prepared before an important 2022 Supreme Court decision, Higgins v the Irish Aviation Authority, which set out guidelines for juries concerning damages for defamation, he says.

[ Aer Lingus pilot awarded €202,500 damages after earlier payout slashed on appeal ]

Juries, he believes, should be left in place and given an opportunity to apply those guidelines.

When it was sought to abolish juries hearing most personal injury trials in the 1980s, the same arguments were advanced: that insurance premiums would go down because there would be lower awards and costs and case numbers and less appeals, he says. “The exact opposite happened.”

Before his retirement in March 2021, Barton was among several judges who opposed controversial new guidelines, drafted by a committee of the Judicial Council, slashing awards for mainly minor personal injuries. They came into effect in April 2021 having been approved by a majority of the council.

The object was “to sate” demands for lower damages in minor personal injury cases, he says.

“The Government was under fierce pressure at the time to provide a situation where insurance would be available to everybody at a reasonable cost. I don’t object to that but, two years on, where are the savings? My premium has gone up.”

His concerns about the guidelines include they are “too restrictive” of judicial discretion. The €550,000 cap for general damages is not sufficient, he adds.

Asked whether he shares concerns of his recently retired High Court colleague Deirdre Murphy that the legal system is “broken” for reasons including a monopoly of big firms, pressures on small firms and too many barristers, Barton says his experience is different.

[ Justice Deirdre Murphy on a broken legal system, ‘corporatisation’ and too many barristers ]

[ Justine McCarthy: Judge Deirdre Murphy’s warning on our broken legal system must not be ignored ]

“I don’t think the legal system is broken, I think that is a pejorative term. I think the system is starved of resources. Like so much else in the public service, it’s a case of resources.”