Jim O'Callaghan
Dublin Bay South · Fianna Fáil · Ireland
“This relates to section 69 of the Bill as passed by Dáil Éireann, which amends Schedule 5 to the Social Welfare Consolidation Act 2005 to add the Courts Service to the Schedule.”
“The first four amendments in this group are minor drafting corrections. They corrected the wording in four places so that the Bill reads consistently. It is changing the word "references" to "a reference". They make no change to the substance or effect of the Bill.”
“The ARP scheme was introduced in July 2022 to recognise the generosity of members of the public who opened their houses, whether in their entirety or through the provision of a room, at their own expense to provide shelter to people displaced by the Ukraine war. The Department of Social Protection administers the scheme on my behalf.”
“I have no doubt it will be challenged, and I have to be able to convince a court, if it is being challenged, that this legislation weighs up conflicting interests and recognises there is a mechanism for somebody who has reformed himself to get off the register.”
“The scheme has been a lifeline for people from Ukraine displaced by the conflict, given high rental market rates and scarcity of rental accommodation.”
“I thank the Leas-Cheann Comhairle in the first instance for presiding over these Stages of the legislation. I am very pleased that this legislation has been enacted. I want to thank a few people very briefly. I thank Deputy McAuliffe for introducing me to Jason Poole. I thank Senator O'Loughlin for her work on this issue in the Seanad.”
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“I thank Senator Fitzpatrick for bringing forward the Bill. It is the second time during her tenure as a Senator in this term that she has raised the issue of retail crime with me. I discussed the issue with her on a previous occasion a number of weeks ago. I also want to commend and acknowledge the other Senators who have spoken. This is the second time I have been before this House in response to a Private Members' Bill. I have not been before the other House for a Private Members' Bill yet. I am not trying to denigrate the House of which I am a Member, but there is a lot to be commended when Private Members' legislation comes before either House of the Oireachtas. My Department has to respond to it. I have to engage with it.”
“If it transpires that any of those remaining elements of the directive require transposition by way of primary legislation, that may be done by way of amendment to this Bill, given that there are already extensive transposition provisions included in Part 7. There may also be an amendment in respect of the granting of damages for harm suffered by a person targeted by SLAPP if it is believed that is necessary or appropriate. In consultation with the Courts Service we are looking at the wording of provisions relating to the publication of judgments to ensure they are operable in practice. Finally, we will seek to include transitional provisions and minor language revisions. These are the potential amendments that will be brought forward on Report Stage.”
“I wish to indicate to the House that I intend to bring forward some further amendments, about some of which we are not yet clear as to the exact placing within the Bill. Those amendments will include an amendment to provide for clearer and simpler defence of fair and reasonable publication in the public interest, which is particularly important to protect responsible public interest journalism, a small number of additional amendments to Part 8 of the Bill in relation to alternative dispute resolution and an amendment in relation to the transposition of the remaining provisions of the anti-SLAPP directive. In parallel to the progression of the Bill, my officials are working on the transposition of the remaining requirements of the anti-SLAPP directive.”
“They developed a mechanism under the common law whereby individuals can apply to the High Court for the purpose of securing a Norwich Pharmacal order. It is much better that we as legislators put in place a statutory scheme, referred to as an identification order, that will enable people to get this information to bring a halt to or seek a remedy for defamatory statements made about them by anonymous individuals online.”
“I thank Deputy Carthy for his contribution. This is probably the most consequential amendment we have discussed this evening. It will probably be of the most assistance to people in Ireland who are concerned and affected by defamation. As I said, the most common form of defamation in Ireland is not carried out by the media. In fact, the media are much more careful and responsible than in the vast amount of other countries. That is why the media in Ireland have such a good reputation. Perhaps it is not acknowledged that part of the reason we have such high-quality media in Ireland is because of the strict defamation laws. Where there appears to be insufficient regulation is social media use by anonymous individuals online. In fairness to the courts, they have showed themselves to perhaps be ahead of the Oireachtas.”
“They include that the claim by the applicant in any defamation proceeding against the anonymous publisher is likely to succeed at trial, the relevant information necessary to bring defamation is likely in the possession of the ISP and the applicant has no other practical means of obtaining it. In addition, section 44(4) outlines the need to consider interests of justice and right and obligations of the applicant, anonymous publisher and any third parties reasonably likely to be affected by the order.”
“The applicant must make the application in good faith and note it to the relevant intermediary service provider, a term defined in the section, and is based on existing definitions in the digital services regulation. It requires an intermediary service provider to provide an applicant with information in its possession relating to the identity of an individual or entity who had posted defamatory material about the applicant online anonymously or under a pseudonym. Section 45(3) identifies requirements which the court must be satisfied have been met in order to grant the application.”
“It provides that the Circuit Court will have a statutory jurisdiction to make identification orders in relation to defamation matters. Such orders, known as Norwich Pharmacal orders, are currently available through the High Court. However, obtaining them can be costly. Defamation actions can be heard in the Circuit Court but until now it lacked power to grant identification orders. This amendment has no impact on the existing powers of the High Court to grant identification orders. This amendment inserts a new section 19 into the Bill, which will insert a new section 45 into the Defamation Act 2009. The new section empowers the Circuit Court to hear and determine an application for an identification order.”
“I outlined on Second Stage a section I thought was missing from the Bill, which was that it contained no statutory mechanism to provide for a person to seek what is known as a Norwich Pharmacal order. Those orders are necessary in circumstances where a person has been defamed online but is not able to identify the publisher of the defamatory material. In such circumstances, at present, it is necessary for the defamed individual to go the High Court to seek a Norwich Pharmacal order that can then be served on the social media provider. After that, it can be possible for the individual who has been defamed to identify the person responsible for the publication. Amendment No. 14 seeks to address an issue many people raised.”
“(6) In this section— ‘application’ means an application under this section for an identification order; ‘defamation proceedings’ means— (a) an application under section 33 for an order to prevent the publication of an alleged defamatory statement, (b) a defamation action, or (c) a claim for other relief under this Act in respect of an alleged defamatory statement; ‘information society service’ means a service normally provided— (a) for remuneration, (b) at a distance, that is to say, that the service is provided without the parties being simultaneously present, (c) by electronic means, that is to say, that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, and (d) at the individual request of a recipient of services, that is to say, that the service is provided through the transmission of data on individual request; ‘intermediary service’ means one of the following information society services: (a) a ‘mere conduit’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network; (b) a ‘caching’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, involving the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients upon their request; (c) a ‘hosting’ service, consisting of the storage of information provided by, and at the request of, a recipient of the service; ‘intermediary service provider’ means a provider of an intermediary service; ‘relevant information’, in relation to an anonymous publisher, means information as to the identity, address or other contact information of the anonymous publisher; ‘relevant intermediary service provider’ means an intermediary service provider that provides the intermediary service by means of which a statement referred to in subsection (3)(a) is published, or caused to be published, by the anonymous publisher.”.”.”
“(5) The court may, whether or not it has made an identification order and where it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediate service provider in relation to an application and the costs resulting from the making of any identification order.”
“(4) A court may— (a) make an identification order only where it considers that— (i) it is in the interests of justice to do so, and (ii) the interests favouring disclosure of relevant information outweigh those against, having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, and (b) make the order subject to such conditions as it considers appropriate, which may include, in relation to the relevant information disclosed to the applicant by the relevant intermediary service provider in accordance with that order— (i) terms restricting the use of the relevant information so disclosed to the bringing of defamation proceedings against the anonymous publisher, and (ii) an undertaking by the applicant not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher.”
“(3) Upon an application, the court may, subject to subsection (4), make an order (in this section referred to as an ‘identification order’) requiring a relevant intermediary service provider to provide to the applicant such relevant information as the court may specify in the identification order where the court is satisfied that— (a) a statement was published, or caused to be published, on an information society service by means of an intermediary service provider by a person or entity (in this section referred to as an ‘anonymous publisher’) whose identity is unknown to the applicant and whose identity is not readily ascertainable on the face of the statement or from other information available to the applicant on the information society service, (b) a claim by the applicant in any defamation proceedings against the anonymous publisher that the statement is defamatory is likely to succeed at trial, (c) the relevant information is necessary to enable the applicant to bring defamation proceedings against the anonymous publisher to whom the relevant information relates, (d) the relevant information is likely to be in the possession of the relevant intermediary service provider, and (e) the applicant has no other practicable means of obtaining the relevant information.”
“I move amendment No. 14: In page 18, between lines 2 and 3, to insert the following: “Circuit Court identification order The Principal Act is amended by the insertion of the following section after section 44: “45. (1) The Circuit Court (in this section referred to as the ‘court’) shall have jurisdiction to hear and determine an application in accordance with this section. (2) An application shall be made by an applicant— (a) in good faith, and (b) on notice to the relevant intermediary service provider concerned.”
“Amendment No. 10 seeks to ensure that applicants are not dissuaded from using alternative dispute resolution mechanisms because of concerns about the limitation period for bringing defamation actions under the Statute of Limitations. It clarifies that periods of time under which alternative dispute resolutions procedures are ongoing shall be disregarded for the purposes of the limitation period.”
“I move amendment No. 10: In page 16, after line 40, to insert the following: “ Effect of specified ADR procedures on limitation periods 34K. In reckoning a period of time for the purposes of any limitation period under section 11 of the Act of 1957 applicable to the bringing of a defamation action, the following periods of time shall be disregarded: (a) where a complaint is made to the Press Council to which Schedule 2 refers, the period beginning on the date of the making of the complaint and ending on the date of the determination of the complaint (including, where applicable, its determination by the Press Council on appeal) in accordance with the procedures of the Press Council for the time being in force; (b) where a person exercises a right of reply under section 49 of the Broadcasting Act 2009, the period beginning on the date of the making of a request for the right of reply under that section and ending on— (i) the expiration of a period of 21 days after the date of receipt by the requester of a decision to refuse under subsection (8) or (9) of that section, or (ii) where an application to the Compliance Committee is made under that section, the date of receipt by the person who made the application of a statement in writing of the decision of the Compliance Committee under subsection (20) of that section.”.”
“I move amendment No. 8: In page 16, between lines 38 and 39, to insert the following: “(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with paragraphs (a) to (d) of subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), to provide the court with such declaration.”.”
“I move amendment No. 6: In page 16, lines 10 to 12, to delete all words from and including “under” in line 10 down to and including line 12 and substitute “to which Schedule 2 refers, or”. This group of amendments makes changes to section 18 of the Bill, which concerns alternatives to legal proceedings. Amendments Nos. 6 and 7 make minor drafting changes to sections 34I and 34J. Amendments Nos. 8 and 9 concern the insertion of a new subsection into section 34J that provides that the court may adjourn proceedings to enable compliance with certain requirements of subsection (1) relating to provision by a solicitor of an accompanying statutory declaration.”
“Likelihood of success at trial is a matter that would be considered in any such strike-out application and it would be difficult to foresee how the circumstances envisaged by Deputy Gannon's amendment could arise in practice. I consider section 34E to provide sufficient flexibility to the court to ensure the cases that could go to full hearing are permitted to do so. While I appreciate and recognise the intention to strengthen the protections provided in relation to section 34E by Deputy Gannon, the amendments as proposed would not achieve that objective and are inconsistent with the purpose of that section. For that reason I cannot agree to them.”
“3 and proposes that rather than using the "manifestly unfounded" test to strike out proceedings it should be open to a court to strike out proceedings that fit the definition of abusive proceedings against public participation, but the claimant should be allowed to defeat such a strike-out application if they satisfy the court that the claim is likely to prevail at trial and that the public interest in allowing the claim to continue outweighs the public interest in dismissing the claim. The striking out of proceedings represents a limitation on the right of access to the courts. Section 34E seeks to transpose the directive and carefully balances the rights of access to the courts and freedom of expression.”
“Further, amendment to pleadings is already a matter for the court provided for by the rules in court. I do not consider it necessary to introduce any such additional provisions specifically in relation to applications under section 34E and accordingly do not propose to accept this amendment. There are a number of issues with Deputy Gannon's amendment No. 5. As I understand it the amendment is linked to amendment No.”
“I am satisfied the list provided in section 34E is sufficiently broad and appropriately reflects the requirements of the directive. I do not consider Deputy Gannon's amendment would provide any additional protections and therefore cannot accept it. Deputy Gannon's amendment No. 4 would essentially freeze proceedings while an application for strike-out or any appeal arising from such an application is being heard or considered. That would include a prohibition on amendments to pleadings. However, in accordance with section 34E, the court, in determining such an application, is under an obligation to act as expeditiously as possible. In practical terms it is difficult to envisage what further steps in the proceedings would arise in advance of the determination of that application by the court.”
“For example, it includes where the "indorsement or pleading" or claim is "an abuse of the process of the court", which would seem to reflect the Deputy's point on abusive proceedings. The list is expressed to be non-exhaustive and is broader than that contained in the general scheme, taking account of recommendations made by the committee in its pre-legislative scrutiny report. The wide definition aims to allow the court enough flexibility to balance those rights as fairly as possible in the circumstances of each case. Deputy Gannon's amendment would substitute the current requirement for a court to be satisfied proceedings were "manifestly unfounded" with a requirement merely to be satisfied the proceedings came within the definition of abusive proceedings against public participation.”
“I might respond formally to Deputy Gannon's amendments. I understand the purpose of amendment No. 3 would be to delete the reference to "manifestly unfounded" contained in section 34E of the proposed Part 4A. Section 34E transposes Article 11 of the directive under which a court may strike out proceedings that have been initiated against a person on account of their engagement in public participation without proceeding to a full hearing if satisfied they are manifestly unfounded. I understand the Deputy's desire to provide protection for those targeted by abusive proceedings against public participation. However, this aim must also be balanced with the constitutional right of access to the courts. Section 34E(2) outlines an indicative list of circumstances where proceedings might be considered manifestly unfounded.”
“have as their main purpose the prevention, restriction or penalisation of public participation ...". That is the reason that language has been used in the section the Deputy is seeking to amend. The Bill's definition uses almost exactly that wording. Adopting a different definition that focuses on the effect rather than the purpose risks causing legal confusion and uncertainty and may not correctly transpose the directive. Regrettably, I cannot therefore accept that amendment. The section as drafted achieves the purpose of what is within the directive. It also achieves the legislative purpose of trying to ensure there is a balance between the right of the individual to vindicate their good name and the right of an entity to publish and to publicly participate in a debate.”
“My concern is the amendment proposed would cast a net too widely and risks including claims that are brought genuinely by people in good faith to vindicate their right to a good name but may have the effect of restricting public participation. Sometimes that can happen. Simply because litigation may result in reducing public participation or engagement by the media does not necessarily mean the individual taking the claim does not have a legitimate claim. Again, it comes back to the balancing act. On the one hand we must balance the right of an individual to vindicate their good name and on the other we have to reflect the freedom of expression that exists. The EU directive very specifically defines "... abusive court proceedings against public participation" as proceedings that "...”
“I commend Deputy Carthy on managing to talk on to allow Deputy Gannon to get time to come here. I share his objective that we ensure that better protections are provided for those who are targeted by SLAPPs. Fortunately, however, in Ireland we do not experience SLAPPs in the same way as I think other, more populous jurisdictions have experienced them in recent years. Notwithstanding that, it is important we have in place legislation to respond to them and also it is part of our obligation to transpose the EU directive. Deputy Gannon's first amendment seeks to substitute the term that the main purpose of the proceedings will "have the effect". He is trying to change intention to "effect".”
“Even if we do not respect those courts, however, we still should be entitled to report what findings that court reached in respect of a decision that was before it, even though we do not support the state itself. I therefore do not share Deputy Carthy's concerns. This is a reasonable protection. It is a reasonable extension of the defence of absolute privilege, and individuals should be entitled to report on and repeat what was stated in a court established under the law of any other state or place.”
“The reason for section 17 is to give protection to people who report on what happens in areas of absolute privilege. If anybody writes about what happened here tonight, they are fully protected. Similarly, however, if they were to write about what happened in a court in the United States or produce an accurate report of a court in Afghanistan, or any country around the world, the journalist would be protected because that is a statement that was made in a court of whatever the country is. It is a fair protection for somebody who reports accurately what was said in a court established in another country. We generally have respect for court systems that operate in other countries.”
“This section proposes an amendment to section 17 of the Defamation Act. That section sets out what is protected by the defence of absolute privilege. For instance, any statement made in this House is absolutely privileged. No matter what Deputy Carthy were to say about me, even if it were grossly defamatory, if I issued proceedings against him he would get the proceedings struck out on the basis that that was said in Dáil Éireann, where absolute privilege applies. Also, the list in section 17 includes statements made in open court by a witness or on affidavit. The purpose of the amendment is to extend that in order that it applies not only to courts established by law in the State or established under the law of Northern Ireland but also to those established under the law of any other state or place.”
“If I am somebody who owns a series of companies and false statements are made about those companies which are very damaging, not just to the companies but to me, I then have an entitlement to take a defamation action because the companies, which are alleged to be involved in wrongdoing, reflect very much on me. There is not an absolute cut off point where, if it is a company being defamed, only the company can take the action. If an individual is very much associated with the company in the eyes of the public or even referred to in the publication, there are instances where that individual could take an action as well.”
“I thank the Deputy for the contribution. In a situation like that, if an individual was very associated with a company, the individual could take an action in their own name on the basis that they have been defamed because an entity with which they are very clearly associated, and it is known to the public that they are associated, has been defamed. In that instance, an individual could take a defamation action in respect of it. It is difficult to give categoric assurances in respect of the type of example the Deputy gives, but what will remain throughout is the entitlement of an individual to take a defamation action.”
“Let us think of a charitable entity that is a corporation. If someone defames that charitable entity that is a corporation, we will have to see some consequence to that. The company does not have feelings in the same way as an individual does so the company will have to be able to show some financial loss or financial consequence as a result of that allegedly defamatory publication. As I say, I will look at it again and will give it further consideration. Obviously, if the Deputy wants to bring anything forward on Report Stage, he should feel free to do so and I will as well.”
“If a company is defamed, it is reflected in the diminution of the financial strength of that company and you will be able to evidence financial loss. It is a sensible decision to make that if a company or corporate body is instituting defamation proceedings, that company should be able to establish there is financial loss sustained. In many respects, this replicates the tort of malicious falsehood, which will also continue to exist after this legislation is enacted. The Deputy also mentioned the defaming of political parties. Although I am not absolutely sure, I suspect that political parties are not corporate entities but are registered with the Standards in Public Office Commission. Maybe things are different in Sinn Féin but I do not think Fianna Fáil is a corporate entity. I could be wrong about that.”
“I certainly will give more detailed consideration to it in light of what the Deputy said. Dealing with the two examples the Deputy gave, the local shop in most situations, I would have thought, is not a corporate entity but is just owned by the local people. Let us assume that it is a corporate entity and they decided to run the shop under the auspices of a company. Let us say somebody suggests the shop is selling produce which is out of date. That is clearly defamatory and damaging to the reputation of that company. If it was the case, however, that that did not result in any reduction in profits or any financial loss to the corporate entity, it is hard to see what is the effect of the allegedly defamatory comment.”
“It does not necessarily have to be a reduction or diminution in its profits, but it has to be a financial loss. That is something that could apply in the situation of a corporate entity that is not for profit.”
“However, corporate entities are in a different position. If a company claims it has been defamed, it must, by necessity, mean that the company's reputation has been damaged in the eyes of right-thinking people. It is a reasonable proposal to say that a company cannot claim that its reputation has been damaged unless it can identify financial loss. The whole purpose of a corporate company is to generate profit. If it is the case that it is not proven that there is any financial loss, that is a situation that should be reflected in legislation. The Deputy will no doubt say that there are many corporate entities that are not for profit. Notwithstanding that, if there is damage to the reputation of a corporate entity, it must be reflected in some diminution or some actual financial loss that it has sustained.”
“One of the issues that was considered by the Department was whether we would include in the legislation a serious harm test as at present applies in England and Wales. It was decided that it would not be introduced or proposed in respect of personal plaintiffs, people who claim that they were defamed. The reason it was not proposed to look for a serious harm test is that the experience in the United Kingdom has been that it does not really achieve much. All it does is it sets in another interlocutory hearing for the purpose of determining whether or not a serious harm test has been met. The important thing from the point of view of the efficiency of the system and, more importantly, from the point of view of individuals who claim that their good name has been damaged is that we decided not to propose a serious harm test for individuals.”
“I will be brief. Section 5 is consequential upon what happened to section 4. We voted to retain section 4. I note the opposition of Deputies Gannon and Carthy to section 5, but the fact that section 4 has been approved by the House means that section 5 should stay. I am retaining this section.”
“I am not looking around for entities that are supportive of this but there clearly are. Deputy Sherlock previously mentioned ISME. I suspect ISME is important but they are not the guiding people. I do not look for outside bodies to dictate to me as to what I should or should not do in the Houses of the Oireachtas. Ultimately, it was in the Fianna Fáil manifesto, it is part of the programme for Government and Members of the Oireachtas will determine it.”
“I cannot agree to the amendment put forward by the Labour Party and I will have to seek to push section 4, which is an important part of the legislation.”
“It sets out what the rules are in respect of awards. If it is so clear, one wonders what is the necessity to have a jury if it is the case that the awards are so accurately prescribed by the Supreme Court in the Higgins judgment. People talk about the common law world. In America, they have juries for most things. Any of the big cases in America you hear of - civil actions - go to a jury and it is a very different type of business than that which operates in the administration of justice in Ireland. Fortunately, jury trials in Ireland never became like jury trials in the United States of America, but I think it is the case, and I am open to correction on this, that juries do not determine defamation actions in the High Court in England and Wales. I thank people for their contribution.”
“People are defamed in many instances by anonymous people online on social media where heinous incorrect allegations are made about them. I identified on Second Stage that we needed to put on a statutory basis what is in effect now known as a Norwich Pharmacal order. That applies when a person who is being defamed online now has to go to the High Court to get an order for the High Court requiring the social media company to provide information to them of the account and the identity of the account holder who has defamed him or her. Fortunately, that has been included, and is one of the amendments within the Bill that we will be discussing presently. The contribution I made on Second Stage was not as limited as is put out there. Deputy Connolly spoke about the Higgins judgment. The Higgins judgment is a clear judgment.”
“It probably is the case, as I said previously, that there will be more reserved judgments of the High Court when it comes to defamation than was the case when there were just juries. When you get a jury award, you do not get a written decision; the jury just give an outcome. That is why the outcomes are immediate. In most other civil actions, a High Court judge will reserve judgment and you get a written judgment subsequently. That takes a period of time. There obviously is as well a benefit in being able to see a written reserved judgement because it gives an indication of the reasons for the decision that is being made. There was a lot reference to what I said on Second Stage. The primary point I made on Second Stage was that where most defamation happens in Ireland at present is online.”
“Deputy Gannon referred to what is being put forth as solely a Fine Gael proposal, but it was also in the Fianna Fáil manifesto, which I supported. It is supported by the Government. It is unfair to categorise it as coming from just one entity. Deputy Connolly talked about conscience. Maybe my level of conscience is not as heightened as Deputy Connolly's, but I do not view the abolition of juries in the High Court in the same way as issues such as Gaza, neutrality or war should be considered. I appreciate that this is a significant change, but it is not a principle of such conscience for me that I am required to genuflect before it. There was also reference to cost and the jurisprudence that will arise.”
“Like Deputy Connolly, I have great respect for all three of those entities, but it is our function to legislate. I have great respect for judges, barristers and solicitors, but they are not elected. Who elected them? Nobody did. We are elected by the people. We should make our decision in the confidence that we are the people who have been elected. We should not defer all the time to people who we believe are better-informed than us. Deputy Carthy also asked what the point was in having Committee Stage, if I am bound by the programme for Government. The point I was making is it is a central premise of the legislation we are discussing, and a significant change, that juries will be removed from High Court defamation actions. That is the point I was making in respect of the issue.”
“Even though somebody may not have intended the language used to be defamatory, that is not sufficient. If the court believes the meaning of it is defamatory, that is sufficient. As I said previously, judges determine defamation actions every day of the week in the Circuit Court, which is where more people take cases than in the High Court. Deputy Carthy also suggested that I said - in fairness to him this was not intentional - that juries were the reason for delay. I am not saying that juries are the reason for delay, but the presence of a jury in a case will inevitably mean that the case will take longer than if there is not a jury. That is a very clear situation. There were many references to what was said by the Bar Council, former members of the Judiciary and the Law Society.”
“I thank Deputies for their contributions. I will try to deal with the issues they raised. Deputy Carthy spoke about the definition of "periodical" in section 3. I am happy to give consideration to an amendment, if the Deputy tables it on Report Stage, which he has indicated he will do. At present, however, I am not fully aware of the detail of what he proposed but, as I said, I will give consideration to any amendment he puts down. Deputy Carthy also spoke about how the media can publish lies. Generally, when it comes to defamation, people do not deliberately defame somebody. What generally occurs is a mistake is made or somebody uses incorrect language that has a meaning that goes beyond what was his or her intention, and it is a matter for the court to determine what the meaning is.”
“I have great respect for juries and they generally, in my assessment, get it right, but jurors' predictions and outcomes are very hard to advise on. That has an impact on people being sued and on insurance companies covering people being sued. They do not reliably know what range of figures could be involved. That is the reason, notwithstanding the eloquent contributions of all four Members here this evening, that I - and it is a roundabout way of going to it - cannot agree to the amendment tabled in the name of the Labour Party Deputy and I must insist that the section continue as it is. I hope that has not put the Leas-Cheann Comhairle to sleep or anything like that. That is the end of my contribution.”
“Then there are issues of certainty as to what will be awarded. If somebody asks a senior counsel what the likely outcome is of succeeding in a case for personal injuries, for example, a broken leg, that senior counsel will be able to assess fairly accurately the likely award from the judge. It will be within a range of figures. We now have the personal injuries guidelines. They will be able to accurately advise a client as to the likely outcome. That is an advantage for a plaintiff. Similarly, it is important for a person being sued, who can be told what the likely award against him or her will be if it goes wrong. One of the downsides of assessments of damages being determined by a jury is that it is extremely difficult to tell a client, whether a plaintiff or a defendant, what the likely outcome of a jury is.”