Proposed removal of juries in defamation trials ‘preposterous’ — former judge

Proposals to have judges decide on defamation cases rather than juries have been described as “preposterous” by a retired High Court judge.

A long-awaited review of defamation laws published earlier this year proposed a number of reforms, including removing jury trials in defamation cases.

Other proposals included clearer protection for responsible public interest journalism and efforts to reduce costs and delays in the legal cases. Minister for Justice Helen McEntee has committed to bring the reforms forward in new legislation by the end of this year.

Speaking on Thursday, Mr Justice Bernard Barton, a former High Court judge previously involved in a number of high profile defamation cases, said there should be a “serious debate” before juries were removed from defamation trials.

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The idea that judges would be better placed to decide on defamation cases than a jury was “preposterous”, he told the event.

“Judges come from a privileged background by and large,” he said. “They live in a rarefied atmosphere. What do they know about how ordinary members of society think about anything, never mind defamation?”

However, the former High Court judge said he would welcome guidelines for juries to help them decide on proportionate awards in cases. In previous cases juries had successfully dealt with cases that had “hugely complex issues”, he told the Law Society event.

Media organisations have criticised jury trials in defamation cases, due to often unpredictable and large awards of damages in the cases.

‘Betting in a casino’

Paula Mullooly, director of legal affairs RTÉ, told the panel talk the review of defamation laws had been “a long time coming”. At present the often high awards of damages in defamation trials against media organisations had a “chilling effect” on journalism.

She added jury trials in defamation cases were unpredictable, comparing them to “betting in a casino”. In many cases juries had awarded damages of “Lotto type” sums against media organisations, she said.

The senior RTÉ figure said she was “disappointed” the review of defamation laws in Ireland did not propose any potential cap on the level of damages that could be awarded in cases.

Prof Neville Cox, a Trinity College Dublin academic specialising in defamation law, said he had difficulty “blindly following” previous reforms in Britain to abolish juries in defamation trials.

Prof Cox said he found the proposed reforms of defamation laws “disappointing”, as they did not properly deal with the question of defamation on social media. If legislation based on the review did not do more to examine the problem “it would be out of date before it is enacted,” he said.

Mark Harty SC said delays in jury trials coming to court were down to “under resourcing” of the Courts Service.

The barrister said it was “in everybody’s interest” that there was greater certainty when it came to the likely range of awards in defamation cases. Mr Harty said a potential compromise reform could see a jury make a recommendation for an award in a case that had to be affirmed by the judge in the case.