Seanad report
Defending a provision in the Defamation Bill
requiring a High Court judge to give directions to a jury in
relation to the matter of damages, the Minister for Justice,
Michael McDowell, said his aim was to prevent juries from bringing
in awards "on the blind" and then being told afterwards, as a
result of appeals, that they had got it wrong.
An attempt by David Norris (Ind) to restrict judges to giving advice in relation to damages was defeated on a vote. Mr Norris said the Minister seemed to have such a low view of the intelligence of the Irish people that he did not think they were capable of coming to a reasonable conclusion about damages.
Jim Walsh (FF) said he thought the approach being taken in the Bill might have arisen because of the case that had gone back twice to the Supreme Court after that court had ruled that the initial award was too high.
There was a need to address that situation, but he would not like to see a situation where a judge could direct a jury as to what the damages should be. He would have no objection to the judge setting out the parameters. Juries might have an element of inconsistency, but the same could be said of the judiciary, and there had been recent evidence of that.
Mr McDowell said that juries should not be told that they were on their own when it came to damages, but that they should be reasonable. That kind of guidance was of no use. The term "directions" in this instance was capable of being misunderstood.
Directions given by a judge to a jury were not a usurpation of their function. It was a legal statement to them of the basis on which they were to proceed.
For example, a judge should be able to tell a jury which had found for a plaintiff in a defamation case that if he were dealing with a personal injuries case he would award a certain amount in compensation.
There was a case which had been down to the courts twice, and it really was absurd if a judge should say to a jury that they should assess damages while not warning them that if they made a mistake the Supreme Court would knock them down.
If the Supreme Court was entitled to reverse an award on the basis that the damages were excessive, surely it made sense at the court of first instance for something to be said to enable the jury to be aware of the need not to make an error. If the Supreme Court said that in a certain case €20,000 was enough compensation, why should not a High Court jury be told that that was the view of the Supreme Court.
Maurice Cummins (FG) asked if that was the type of guidelines the Minister was talking about. Mr McDowell responded that he was talking about general guidelines to bring juries' minds to the kind of things that would help them to make a judgment on the matter of compensation which would not be overturned on appeal.
The Minister undertook to consider the provision relating to the power of courts to issue correction orders in respect of plaintiffs who were successful in defamation actions.
Maurice Hayes (Ind) said he was concerned that the Bill, as drafted, appeared to contain an implication that judges should specify the date, time, space and place on which and in which apologies should be published. "With all respect, judges are not editors of newspapers." As it stood, this section of the Bill disregarded the possibility that on the day a judge ordered that an apology be made the front page story might be that of a tsunami or another natural disaster having happened.
He would prefer the inclusion of a provision that the apology would be included in a timely and proportionate way with due prominence, with the proviso that the person concerned would have the opportunity to return to court if he or she was not satisfied with the apology given.
The court could then deal with the newspaper concerned for contempt for not having carried out the order of the court.
Mr Norris said they in the House were barking mad to attempt to create two tiers of people. If the Bill went through, and he sincerely hoped it did not, people like them in public life would be fair game.
Mr McDowell said the Government amendment in relation to what Senator Hayes was trying to achieve was preferable. It stated the period not later than the expiration of which a correction should be published and the form, content, extent and manner of publication of the correction.