A straightforward three-day High Court action for libel would set a disappointed litigant back £300,000, a leading libel solicitor has said.
Mr Michael Kealey, a solicitor specialising in libel with William Fry solicitors, was speaking at a conference on libel, privacy and the law in the Bar Council headquarters in Dublin on Saturday.
In this context, awards of damages were often a secondary consideration for plaintiffs and defendants, he said.
Advocating reform of the libel laws, he said that due account was usually not taken of an apology. He pointed out that when the Examiner published a damaging allegation in relation to the Minister for Sport, Dr McDaid, it published a front-page apology the next day, admitting the article was wrong. None the less, a jury awarded him £90,000 (€115,000).
"While in no way seeking to underestimate the undoubted hurt and embarrassment suffered by the Minister, the award appears to me to be out of proportion to the damage caused to him. For the majority of the workforce that award [libel awards are not taxed] would represent between three and five years' salary. To obtain an equivalent award for pain and suffering in a personal injuries action, the plaintiff would have had to suffer the loss of an eye."
There is now a strong possibility of a successful challenge to aspects of the Irish law of defamation before the European Court, he said. The manner in which damages were awarded could well be such a case.
Mr Kealey pointed out that the judge could offer very little guidance to the jury in making awards. In particular, the judge could not indicate what the normal level of award was in similar cases. This had been the basis of an appeal over the amount of an award to Mr Proinsias de Rossa against Independent Newspapers, where the jury in the High Court had awarded him £300,000.
The Supreme Court rejected the suggestion that the trial judge should give figures for similar awards to the jury, on the basis that this would amount to an unjustifiable invasion of the providence and domain of the jury. However, Mr Kealey pointed out that, in a dissenting judgment, Ms Justice Denham had disagreed, saying that "information does not fetter discretion".
This decision of the Supreme Court has been appealed to the European Court of Human Rights.
Reform of the libel laws was also advocated by Mr Eamon Leahy SC, but he urged change in favour of the plaintiff. He was opposed to two frequently proposed reforms - reversal of the onus of proof and the abolition of juries. To place the onus of proof on the plaintiff could be unconstitutional, and to suggest that juries were in some way incapable of assessing cases was "offensive".
Mr Leahy called for additional powers for judges to enable them to order a losing defendant to publish or broadcast details of the case. In the case of a libellous statement made on the front page of a newspaper, a judge should be able to compel publication of the outcome of the case in the same space on the page, he said.
Ms Emily O'Reilly, a journalist with the Sunday Times, told the conference that competitive and commercial pressures were eroding the voluntary privacy code that existed among the Irish media until about 10 years ago.