Jury trials in defamation actions are unpredictable, slow and far too costly

“It’s… Rebecca Vardy’s account.”

With these four words Coleen Rooney revealed to her social media followers that, following a months-long sting operation, Vardy had leaked posts from Rooney’s private Instagram account to a tabloid newspaper. Rooney’s husband, Wayne, had played with Jamie Vardy, Rebecca’s spouse, for the England football team.

The words spawned a defamation case, the “Wagatha Christie” trial, which was arguably the highest-profile such action since Oscar Wilde took on the Marquess of Queensbury in 1895. They also spawned a play and a two-part Channel 4 dramatisation.

Last year, after a seven-day trial, judgment was handed down in Rooney’s favour by Mrs Justice Karen Steyn in the High Court in London. Unsurprisingly, she took to social media to express her pleasure at the outcome in a case she never “sought or wanted”, adding that she had “no alternative” but to defend the claim “to end the repeated leaking of my private information to the Sun”.

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Missing from Rooney’s post was a statement that, while happy Judge Steyn had vindicated her position in a detailed and forensic analysis of the law and the evidence over 75 pages, it would have been so much better if a jury had done so. This is because juries were effectively abolished in defamation actions in England in 2000. They remain in place in Ireland.

Proponents of the use of juries in defamation trials argue that the parties gain additional comfort from a decision of their peers. This does not stand up to scrutiny. It cannot seriously be suggested that a successful plaintiff, as in practically every other civil action, is any less vindicated by a verdict from a senior judge than from a jury. Further, like Coleen Rooney, successful parties have the benefit of a reasoned decision which supports their position.

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

[ Application costs decision in Gerry Adams defamation case against BBC deferred until full trial ]

Jury trials in defamation actions are unpredictable, time-consuming, costly and of little benefit to plaintiff and defendant alike. Several jury awards, including that of €10 million to a company executive over a press release, serve to bring the legal system into disrepute.

Defamation is virtually the only tort that continues to be decided by a jury. Practically all other civil claims, including personal injury cases, are heard by judges alone. Their retention in the High Court is an anachronism. They are already gone in the Circuit Court, where awards of up to €75,000 can be made.

The decision-making process of juries in defamation actions is by its very nature opaque. They do not have to explain how they came to reach a decision on liability, how they applied the law or how they assessed the level of an award. A reasoned decision by a judge, even one that a party may disagree with, brings predictability to the judicial process and is more likely to bring closure to a dispute. It also chimes with the need for greater openness and transparency in public life.

A trial before a jury lengthens considerably the time taken to run a case. Often-complex legal principles must be explained to the jury; there is legal argument in its absence; and it is addressed by both sides before being charged by the judge.

This leads to increased legal costs (exacerbated by the “two senior” rule, where two senior counsels can properly be engaged on each side with the loser paying for four senior barristers as well as the fees for junior counsel and solicitors).

There is a concomitant waste of court time, with trials sometimes lasting more than double the time they would have if taken before a judge alone.

Getting rid of civil juries would lead to shorter trials. Shorter trials mean lower costs, speedier hearings and a reduced, although still significant, financial exposure for the parties.

As civil juries are only empanelled for a portion of each court term, cases take much longer to come on for hearing. Many of the actions in the current High Court defamation list relate to material published in 2017. Such delays do an injustice to plaintiffs, who, if defamed, should be entitled to have their good names vindicated as early as possible. Neither can it be said to do justice to defendants, as delays and the threat of sizeable damages and legal costs exert a chilling effect on the right to free speech.

[ The Irish Times view on defamation reform: time to act ]

[ Former Sunday Independent columnist’s defamation claim against journalist should proceed in High Court, judge rules ]

The most damning criticisms of defamation juries is that their decisions are both unpredictable and, more likely than not, their awards are excessive. Ireland is an outlier in the level of awards given for damage to reputation. Awards, and consequently settlements, are regularly 10 times greater than would be given in our neighbouring jurisdiction and higher again than would be the case on the Continent.

A young person rendered quadriplegic by the negligence of a third party can expect to receive approximately €500,000 for a lifetime of pain, suffering and loss. Several jury awards in defamation cases have exceeded this amount, often to a considerable degree. One award of €1.872 million did so by a factor of three.

The supposed safeguards against excessive and unpredictable jury awards by the appellate courts in Ireland have been criticised by the European Court of Human Rights. They are a financially onerous sticking plaster over a gaping wound. All previous efforts to introduce predictability have failed miserably.

In short, the retention of jury trials has served to damage the constitutional entitlement of freedom of speech and has undermined one of the pillars of a democratic society, namely a free and independent press.

After a detailed review of existing defamation legislation, the Government has decided to abolish juries as part of a wider package of reform. The Minister for Justice said that the amendments “will have a positive overall impact on protection of fundamental rights, access to justice, reduction of courts’ backlogs and reduction in legal costs”.

The Minister is right and the changes cannot come quickly enough. If nothing else, they would ensure that defence lawyers would no longer have to hear the constant refrain of “Sure, you never know what a jury will do.”

Michael Kealey is a solicitor specialising in defamation law