Michael McDowell
National University of Ireland · Independent · Ireland
“Then I think of this particular Chamber where people are polite and kind to each other and listen to each other respectfully. There is no baying or shouting down or whatever. It is a great tribute to the Seanad staff that that spirit continues to exist in this House.”
“I note that the whole scheme of the planning Act is that exempt development proposals are considered by the Houses. It is questionable whether this House has really considered the exempt development regulations. Without debate, we sent them off to a committee.”
“I am one of the people who disagrees with the substance of that report. We have to have a real solid debate on it here in this House, not merely a cursory one. It is an issue of fundamental importance. It cannot be avoided, one way or the other. Whatever your views are on it, it needs to be thrashed out.”
“Although coming up to the end of this term we are rushing things through, and the guillotine is well-oiled and slicing this way and that, we have a lot of work to do in the autumn.”
“The people who did that were brought before the International Court of Justice and condemned and imprisoned. If Ireland does not clearly state that there are to be consequences for people who do things like what Mladić, Milošević and Karadžić were brought to account for, if we are incapable as a State of publicly saying that what Secretar…”
“If we cannot, as a State, say publicly to Rubio, "Hands off the International Criminal Court", when they were quite happy when the people who did the 7,000 murders in Srebrenica got their just desserts, but when there is any suggestion that what has happened in Gaza, with 70,000 innocent people killed by aerial bombardment and land bombar…”
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“Getting myself back in order, what I wish to say very simply is that this serious harm test should be part of our defamation law. No one should be bringing anyone else to court for defamation if there is no serious harm in any circumstance. Freedom of speech, the protection of a citizen’s good name and the like do not require protection by the legal process where there is no serious harm to an individual. Serious harm cannot just mean financial loss, depending on whether the business defamed is corporate or personally owned by a trader. To give an example, suppose a big burger joint is accused of using condemned meat or horse meat in a newspaper advertisement or article.”
“No, I am glad the Leas-Chathaoirleach did that. We will reach the amendment at a later stage, but I ask the Minister to think about this point. The Minister is proposing that the courts will be able to say to people that yes, they have been defamed and they have no other way of finding out who defamed them other than to bring an application to court, but they must now pay Elon Musk and his lawyers for the expense involved. If the Minister wants to have something that will really numb applicants, this is it. People will be asked to pay Elon Musk to find out who defamed them anonymously. That could not possibly be right. I am out of order because I should not be talking about that amendment at this stage. I am firing a warning shot that this cannot be enacted into law.”
“In subsection 22(5), it states: 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 intermediary service provider in relation to an application and the costs resulting from the making of any identification order. If I had been defamed and went to court, and X informed me it was Senator Fitzpatrick who defamed me anonymously, I would then have to pay X for finding that information out. That cannot be right.”
“To point out one aspect of it, if someone applies for an order to be made against an Internet service provider to identify the author of an online defamation, under the Minister’s proposed legislation, he or she will face the risk of paying the costs of the Internet service provider, even if the person is successfully identified. That is in subsection 22(5). I was astonished to see that. For example, if something grossly defamatory about me is posted on X in the name of an online anonymous author, the Minister is making provision that if were to go to court to require X to identify who has defamed me, I would have to pay X for the costs of that application. That is wrong.”
“It is only confined to where an inquiry is made, not to a statement being made. To say, “That has not been paid for” or “You took two bottles of wine”, is not an inquiry. The points raised by the Senators who have tendered an amendment are not answered by the Minister’s amendment. It is not an inquiry to say to someone that they did not pay for an item or to ask them to give an item back. That is not an inquiry. The Minister talks about online defamations, which we will come to later. Although the Minister has gone in the right direction in his proposed new sections, namely, sections 45 and 22 of the Bill, which were added to deal with online anonymous defamations, for the reasons we will come to when we get to that section, they are very weak.”
“I do not accept the proposition that it gives rise to the possibility that someone can make a pre-emptive strike and say at the very beginning that the trial must stop because there is no serious harm and that this will have the effect of lengthening the procedure. It will have the contrary effect. It will stop spurious, irrelevant, trivial and unserious claims being made. A solicitor acting for a plaintiff who wants to bring a case that is vulnerable on the serious harm threshold will say to his or her client not to bring the case forward because he or she could end up paying the costs because they are unable to prove serious harm in the sense laid down in statute. The Minister says that his amendment in section 8 will give rise to some kind of defence. That defence is very narrow, however.”
“In the United Kingdom, if the case collapses on the application and the judge says there is no serious harm, that is the end of the case and you do not go to trial, so I do not see how it can be stated that it lengthens the case. If the defendant fails on the serious harm test, that is a different matter. What I am saying – most Senators will agree with me – is that if there were a serious harm threshold, a lot of potential plaintiffs would be told by their solicitors that they have to get across this fence if the case starts. They would advise them to think long and hard because if they were to fail, they would end up paying the cost of the whole claim.”
“McDowell's name over the premises but that if you look up the register of business names and find out it is Michael McDowell Limited that runs the shop, there is no cause for action unless I establish serious loss. Serious harm is not always going to be reflected in a balance sheet. It cannot be reflected in a balance sheet. Imagine having to produce an accountant to say that the growth pattern of profits in McDowell's Butchers Limited dipped as a result, whereas if I was unincorporated, I would not have to prove any such thing. I do not accept that proposition at all. The Minister made a point that the serious harm threshold would give rise to preliminary applications and that that would lengthen the whole process. Either the application succeeds or it does not.”
“I have no doubt about that but how can it possibly be that if I, on tax advice, operate a butcher's business in Ranelagh through a company, I cannot sue somebody who says I sell rotten meat, but if I am a person who operates that business without incorporation, I can? I do not understand that. I cannot understand that as a reasonable distinction. I would say most businesses in the main street in Ranelagh are probably corporate but I am not sure of it. Maybe the smaller coffee shops are personally owned and there is no company there. Maybe there is, maybe there is not. Nobody doing business with them really knows. However, I do not believe for one minute that a statement like "McDowell's Butchers in Ranelagh sells rotten meat" becomes actionable per se if it is Mr.”
“It has emerged in this debate that there is an extremely conservative view that the guarantee for the good name of every citizen in the Constitution also means that the law of defamation must apply to unserious defamatory statements. I do not accept that proposition for one minute. I am not asking the Minister to comment on the hearsay account that came from the Attorney General's office via his own officials, but I am saying I reject that. I reject outright the notion that we in Ireland cannot have a serious harm threshold for persons but that we can have one for companies. The Minister made the point that companies are normally concerned with profit and that, therefore, it is legitimate to provide a serious harm test for them. It is true that most companies' commercial activities are reflected on their balance sheet.”
“You cannot succeed in that action and it is not a defamatory statement unless there was some basis for thinking the witness to whom the publication was made would attribute either lasting doubt on the issue or credibility to the statement that was made. I do not accept the proposition that the serious harm test is constitutionally infirm or that there is a serious issue as to whether, under the Constitution, unserious statements - let us use that phrase about it - must be actionable because otherwise it would be unconstitutional to prohibit them. I do not accept that proposition. It is important that this has emerged in this debate.”
“One is a case where a court can say, "Are you seriously suggesting that you were seriously harmed by a statement made to somebody who knew it was not true?" It happens very frequently that statements are made to somebody in the presence of another person who knows it is not true, but that is currently actionable. That is where the serious harm test comes in. If it was made to somebody who manifestly would not believe it, the serious and lasting harm threshold would not be met. That would be the end of the case. You cannot sue on the basis of, "You accused me of being a paedophile in front of my wife".”
“I would say there will be a salvo coming the Minister's way from Merrion Street for doing that. However, it answers the question in that I had suspected there was a notion that the serious harm threshold was regarded with suspicion by what I consider to be extremely conservative legal advice. I will give an example to Members of the House. If somebody called me a paedophile, that would be defamatory. If somebody says it to me in the presence of my wife and nobody else, there is practically no harm done to me of a lasting kind because my wife does not believe it, would not accept it and would reject it instantly.”
“I am grateful to the Minister for his reply. I am also grateful to him for quoting from his own officials' view about what people in the Attorney General's office have said. That is a first, I have to say.”
“It is trivial. Forget it." Someone can go and sue if they like but the costs will be awarded against them because even though they can make the case that it is defamatory in principle, it is not defamatory to a sufficient extent to constitute a serious defamation. That is the point I am making. The qualified privilege proposals in section 8 of the Bill do not deal with many of the situations that happen on the ground. They do not deal with the whole seriousness dimension at all.”
“I want to hear somebody say either that it is constitutionally infirm to introduce a seriousness test because of the constitutional guarantee for the good name of the citizen or alternatively that a policy decision has been made that, unlike in Northern Ireland, England, Wales and the other common law jurisdictions mentioned earlier in the debate, it should not be done here as a matter of choice. I would like to hear the rationale for saying that a seriousness test, either as a matter of policy or as a matter of law, is unacceptable and that Irish defamation law should not have it. Let us forget about retailers for a second. In any context if someone gets a solicitor's letter saying that a statement that was made was defamatory, at the very least they are entitled to get their solicitor to say in response, "This is not serious.”
“Is there some legal reason that seriousness should not be incorporated into defamation or is it a policy decision? That is the point that worries me. If the Attorney General is saying we cannot introduce seriousness, that is one thing. I would like that to be confirmed. However, if it is a policy decision that unserious defamation is to remain actionable, is that a policy decision being made in this legislation? Many people in this House have been lobbied on the point about defending one's property. I welcome such lobbying by RGDATA and other trader organisations to amend this legislation to protect retailers more. The amendments on the seriousness threshold have been grouped together for debate here. I have not objected to that because I did not want to be accused of filibustering. The seriousness test is a separate issue.”
“Qualified privilege is not enough. Qualified privilege is a defence that has to be raised. The benefit of a seriousness test is that from the very beginning the case will fail if it is not serious. It does not require defence witnesses to come to court and say they believed this or that. The seriousness issue goes back to the remark in a pub, "You're always taking rounds from others and you never buy one yourself - you're a mean git" or words of that kind. Those can be seen as defamatory statements but they are not serious. That is the point I am making. Is the Minister being advised by the Attorney General that the seriousness test that exists in the United Kingdom, Canada, Australia and other countries would be unconstitutional here or are the Department and the Minister choosing to keep our law frozen in the way it is at the moment?”
“It does not deal with situations where the owner of a shop of the kind referred to by Senator Fitzpatrick gets into an argument or discussion with a customer as to whether he or she is loitering around to assist somebody else to shoplift. It does not deal with those kinds of situations at all. It purely states: (i) an inquiry as to whether the person whom the statement concerned had— (I) paid for goods or services, (II) obtained services, or (III) in his or her possession— (A) goods, (B) proof of payment for goods, or (C) proof of payment for services, That attracts the defence of qualified privilege. It does not deal with the real cut and thrust of what is likely to happen in the shop where the person at the checkout says, "The goods in your bag haven't been paid for." That is not an inquiry; it is a statement.”
“It proposes to extend the defence of qualified privilege to situations where the defendant inquires as to whether: the person whom the statement concerned had— (I) paid for goods or services, (II) obtained services, or (III) [had] in his or her possession— (A) goods, (B) proof of payment for goods, or (C) proof of payment for services, or (ii) a statement that the means of payment proffered by the person whom the statement concerned was unable to be, or not capable of being, accepted [in other words, a payment card did not work], and (b) was not published excessively. However, it does not deal with real situations in the shops that we are dealing with here. It does not really deal with the shopkeeper whose store detective is saying that something has not been paid for. That is not an inquiry; it is a statement.”
“The Minister has proposed in section 8 that there should be a provision which deals slightly with the circumstances we are discussing here but it is inadequate. There is not much point in waiting until section 8 is reached to point out that it is no answer to the points that have been raised by Senators.”
“The amendment proposes to amend the entire definition of defamatory statement in the principal Act and to say that a defamatory statement must be one "that tends to cause harm both to a serious and to a lasting extent in the eyes of reasonable members of society". An incident in a shop does not normally fall into that category. The lasting effect in the eyes of reasonable members of society simply is not there. It is a momentary embarrassment perhaps. It is something over in ten or 15 seconds, or maybe two or three minutes at the outside. It is not worthy of defamation, and it is a waste of the court's time to consider such claims. Try-on defamation actions, which are designed to extract settlements from retailers, would be deterred if this amendment were accepted. I would like to hear the Minister in response.”
“It certainly does not mean that nuisance actions, and nuisance and trivial claims are to be protected on this differential scale of seriousness. If you are running a retail premises in the centre of the city of Dublin or any other city, and you really do consider you want to intervene and challenge somebody who you think is in the business of taking your property without paying for it, you should not be operating on the basis that if that person proves to have a receipt and sends you a solicitor's letter, the incident will cost you €5,000, €10,000 or €15,000 for something comparatively minor like that. I ask the Minister to accept this amendment.”
“This is to try to stand beside decent people trying to earn a decent living and trying to conduct a decent commercial activity who find themselves powerless and frightened to intervene in some cases, and told by their lawyers to give the man or woman €5,000 and his or her solicitor €2,500 for their costs just for receipt of a letter. That is the kind of thing we are up against here. I can see nothing wrong with saying that defamation has to be serious in every case, personal or corporate. It may be said that the Constitution talks about the good name of the citizen, and it does not talk about the good name of the company. That is true, but the Constitution, if you look at the directive principles of social policy, does favour private enterprise. It does favour people who are trying to make a living.”
“Why is it right that unserious or claims lesser than the serious threshold can be brought without any risk to the person making the claim, at very considerable risk to the person against whom the claim is made of legal costs, the cost of settling and buying off a claim and all of that? Why is this two-tier system for seriousness being put in place in the same statute? I will be glad to hear from the Minister why it is considered the case that a company can only sue for what is called a serious defamation but a private citizen can sue for something which would not amount to a serious defamation. This is not a notional lawyer's argument that is happening here.”
“I will have to ask the Minister about this, but I assume I have been on the PULSE system ever since that incident took place. Those kinds of things actually happen. That happened to me. The idea that I could, in similar circumstances, start sending a solicitor's letter to the proprietor of the Circle K petrol station at Grosvenor Road and demand this, that and the other by way of apologies is nonsense. Protecting one's good name, which is a constitutional right, does not involve threatening people who are trying to protect their business interests from what are minor matters. The real question is this: why it is right that the seriousness test that applies in all defamation in the United Kingdom will only to apply to corporate plaintiffs in Ireland?”
“I am sure the Minister is well aware of the dampening effect this has on the capacity of retailers to intervene. Unless a retailer is 100% certain that there is shoplifting going on, they are hamstrung as to what they can and cannot do. On one occasion, I went to a petrol station in Rathmines and attempted to pay using the card system on the pump. I thought I had paid, but I received a phone call from Rathmines Garda station alleging that I had driven off without paying. It was a bit ridiculous. When I went back to the petrol station to pay, there was a large notice on the pump stating it was defective and the card system was not working. That was a small incident, but I had to suck it up. It was embarrassing that the gardaí had been notified.”
“An absolutely trivial incident can easily give rise to €20,000 or €30,000 worth of expenditure before you ever get to court and have the good luck to employ a barrister and be liable for the barrister on the other side. Even to fend off or settle an action costs serious money. In this amendment we are saying it has to be a serious defamation. If it has to be serious in the eyes of the Minister for a company to sue, why should it not be equally serious for an individual to sue? I do not know where the Minister got the idea that in respect of bodies corporate, a seriousness test was to be brought in as applies in the United Kingdom. It is a reasonable thing to do. However, a lower test applies to a personal litigant who has been, arguably, defamed in a fairly minor manner in an incident which is bound to take place fairly frequently.”
“Sometimes ridiculous things happen. When security tags go off when one is leaving a shop and suddenly one is embarrassed by that event, it could be said to be defamatory. It is embarrassing, but it is not worth suing over. That is the point I am making. It is certainly not worth giving a basis to initiate an action to a person who can claim that an ostensibly defamatory statement was made regarding them which is not serious. However, from the point of view of the shopkeeper or the person conducting the business, if they receive a solicitor's letter and a Circuit Court civil bill, it is a disaster. The owner has to go to a solicitor, reply to the correspondence and probably come up with an offer to try to buy it off. They have to come up with a bill for their own costs and for the costs of the alleged injured parties.”
“You may not have paid for X or whatever," is that a serious defamation if it turns out that the bag is, in fact, empty, there is a receipt in it or whatever? Are we saying that is actionable, per se , as a defamation? I do not have to give graphic examples. We have a bad enough set of circumstances for retailers in urban areas, not just in Dublin, who are under siege in their own premises defending their own stock. Asking somebody to stop so that someone can look at their bags or ask them to produce receipts, or cases where a store detective or a man or woman behind a till asks someone about something in their bag and whether they have paid for it, are necessary remarks in order to defend the integrity and commercial viability of shops. People who are in trade are entitled to have those things said on their behalf without being sued.”
“If we are going to have a two-tier gravity test from now on, it means that accusations or statements which do not meet the serious threshold for a company but which are made in respect of an individual are to be actionable. I gave the example of a person who is in a pub when somebody says, "You are nothing but a thief" or something like that. There are also much more practical cases than that. One would imagine that somebody about whom a remark of that kind was made in a pub would be told, if they went to their solicitor the next day, to cop on, only three people heard the remark and none are likely to believe it anyway. I will outline for the Minister an example of where this would have effect. If somebody is stopped in a shop by a member of staff or store detective and that person says, "Excuse me, can I look in the bag?”
“To take an example, if somebody says "You are nothing but a thief" in a pub at night or whatever, that is defamatory, and it is actionable in the case of an individual, as things stand, regardless of whether it cause serious damage to the reputation of the person concerned. In Britain, certainly in England and Wales - I am not sure about Scotland and Northern Ireland - there is a serious harm test for all defamation. One cannot sue because a defamatory remark is made without regard to whether it is seriously defamatory in the case of an individual. The Minister has made the correct distinction, in my view, in regard to companies. There has to be serious defamation for a company.”
“If the House looks at page 7 of the Bill as passed by the Dáil, the House will see that section 6 of the Minister's Bill proposes to insert a section 12 in the principal Act. Section 12(2) of the proposed section provides that, "A statement concerning a body corporate that is made on or after ... the coming into operation of section 6 of the Defamation (Amendment) Act 2025 is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the body corporate." In other words, a test is being laid down for companies that it has to be serious harm. That does not apply, as the law currently stands, to defamations of people who are not companies.”
“I move amendment No. 5: In page 7, between lines 14 and 15, to insert the following: “PART 4 DEFAMATORY STATEMENT 6. Section 2 of the principal Act is hereby amended by the substitution of the following for the definition of “defamatory statement” appearing in that section: “ ‘defamatory statement’ means a statement that tends to cause harm both to a serious and to a lasting extent in the eyes of reasonable members of society, and ‘defamatory’ and ‘serious harm’ shall be construed accordingly.”. This is an important amendment and I want to put it in context. The Minister is proposing to amend the law in relation to defamations of bodies corporate, in other words, companies and associations and bodies of that kind.”
“There are things we can do on a prophylactic basis to warn and vaccinate people and get them to go to dentists so that these things are noticed in a timely manner. Anything the Government can do in relation to the HSE to concentrate resources and bring to the public's attention the real dangers of not dealing with symptoms and conditions that are indicative of oropharyngeal cancer should be done. It will save lives, improve the life experience of people who are afflicted with oropharyngeal cancer, improve their families' sense of well-being and bring about a fairer and more equitable health system. Excellence should be pursued. It is not enough to do what we are doing at the moment, which amounts to limited resources for a condition or set of conditions that will respond to increased resources and increased personnel.”
“I appreciate that everybody wants more money, but this money is extremely well spent. The figure in the motion that is of the greatest importance is that there is a 9% increased mortality rate associated with every four weeks that radiation treatment is postponed for oropharyngeal cancers. That is a clear indication that speed is of the essence and that properly established, funded units, staffed with expert personnel are provided to deal with this issue. That is essential. Our dental system is deficient, and many dentists both in the university hospitals and in private and State practice are struggling to give Ireland the kind of dental service it needs. At this end, however, the mortality rates and suffering rates that go with oropharyngeal cancer are very significant.”
“I have great pleasure in seconding Senator Craughwell's motion. He has spoken very eloquently and movingly about the personal aspects of this particular issue, which is raised in the notice of motion. I just want to say a few things. I am very grateful to him that he used the time of the Independent group of Senators to put this issue before the House. In large measure, it is something that is not spoken about. The HPV vaccination programme has been rolled out among school pupils, which is a very good thing, but it should be effectively brought to the attention of nearly everybody under the age of 30 that the vaccine is available, especially in the migrant world in which we now live, there are people who do not go to secondary school and who will not be dealt with in that way. The second point I wish to raise relates to funding.”
“If we are going to empanel a jury and it is going to listen to all the evidence, there is no reason they should not also consider whether, in addition to the substantive case that is triable before them, there has also been defamation which merits an award of compensation.”
“If we are going to have a jury decide a serious sexual assault, a serious Garda assault, or whatever, if in addition to the physical actions that took place a statement was made about the victim of a grossly defamatory kind, I cannot see any reason the jury should not consider that as well and take that into account when awarding damages, if it accepted the evidence of the alleged injured party. We can have a situation, as the Minister says, for instance in a privacy action, that if you want to claim damages for breach of privacy, you cannot at the same time run it in conjunction with a defamation action, as things are happening at the moment. That is unfortunate.”
“There are plenty of examples of this which occur to me. Supposing somebody was accused of, say, sexual assault and battery, and that is triable by a jury, why could a jury listening to that case not come to the conclusion the perpetrator had, in the course of the events before the court in the assault case, stated something wholly untrue about the victim of the assault? Why would there have to be a second trial of the defamatory part of the evidence? I do not see any good reason that should happen. The Minister earlier mentioned the privacy case where one effectively has to elect, in relation to serving notice of trial, between the right to a jury trial and the right to adding in a breach of privacy claim. People should not be forced to that election.”
“If we are going to have, for instance, an action for malicious falsehood, I do not see why there should not be at the same time a right of the High Court to have a jury entertain in conjunction with that the lesser tort of defamation. If a jury is going to be empanelled to listen to one bit of evidence and decide one particular case, why is it that it cannot at the same time consider whether damages should be awarded for defamation as well? We could have people being assaulted in circumstances where a High Court jury action was justified and the facts before the court might also include the making of defamatory statements by the defendant. In those circumstances I cannot see any good reason the jury determining the assault case should not also have the right, based on its appreciation of the evidence, to deal with a claim in defamation.”
“I move amendment No. 4: In page 7, between lines 14 and 15, to insert the following: “6. Nothing in this Part prohibits the trial in the High Court with a jury of a claim in defamation in conjunction with any related claim arising substantially out of the same alleged facts and circumstances which would otherwise be triable by the High Court with a jury.”. This amendment proposes to insert in Part 3, which effectively abolishes jury trial in the High Court, a new provision. What I am dealing with here is a situation where defamation might also be tried by a jury in conjunction with, say, a sexual assault or an assault of a non-sexual character, for that matter. I mentioned the logic of this.”
“I fully concede that in that case, there was not a right of trial by jury and it would have been strange indeed if a jury had made up new law or decided a novel point in Irish law and decided whether there was a constitutional right to privacy and what its consequences were. I am not arguing for juries to decide everything. I am merely saying that there will be cases involving the artificiality of distinguishing between a dispute between somebody who says he did not assault someone, in circumstances where there is a jury involved if that other person is the alleged victim, but if a newspaper, broadcaster or ordinary citizen publicly states their opinion on that question and makes an allegation of exactly the same kind, no jury will be involved. I cannot put the matter any further than that.”
“I asked if the Minister would mind explaining how a journalist can say something happened and no jury can be involved but an alleged victim can say precisely the same thing, have all the same witnesses and all the same rows in the court between the lawyers for both sides and so on and have a jury trial. To say to me that we should do that because we can does not really deal with the matter in a satisfactory manner. The Minister rightly referred to a case which I think both he and I were in, where a privacy matter was determined in the High Court, sitting without a jury, in Trim in County Meath. It was a seminal case at the time because it was to do with the nature of the right to privacy.”
“I listened very carefully to the Minister's reply. When I asked why do this, he said it is because we can do it. That is a remarkable proposition. I asked the question as to why should we do it and he said because we can. It is a very strange argument in favour of changing the law. Of course we can change the law. We can do many things, subject to the views of the Members of the House. However, to say to me when I ask why something should happen is that it is because we can do it is avoiding the issue of whether we should. As I understand it, if somebody comes to change the law, he or she is saying there are reasons why we should do it.”
“Perhaps he had a different experience from mine, but I have never seen a case in any of the courts where the Judiciary, considering the outcome of a defamation case, said that the jury was very mean and decided to double the damages in all the circumstances. There may well have been cases where juries gave what were called penny or shilling awards in the past and those were overthrown on appeal. However, in the ordinary course of events, I do not think it is reasonable to say that the Judiciary is going to be more generous with damages awards than juries are. I think, on the contrary, half of the argument made by the newspapers in persuading the Government to introduce this legislation is that juries were frequently very excessive regarding the awards of damages they made.”
“Otherwise, we should get rid of jury trial completely and just forget it, and in the criminal sphere as well. If judges are as good as juries in determining everything, why not have the Special Criminal Court decide every case? I do not believe that proposition. I believe that jury trial in criminal law is a hugely important constitutional right and that jury trial in certain civil proceedings such as rape, assault and all the rest of it is an important statutory right that we should not sweep away. The final thing I want to say in relation to the point that the Minister made is I do not believe for one minute that he is right in saying that judges would award more damages than juries.”
“All my colleagues and I have done in this amendment is to say that some discretion should be allowed to the courts to distinguish between them. I just want to make one point in case I am misunderstood. The Minister says that judges are fair and that it does not really matter about verdicts, because judges would usually come to the same view as a jury. I do not accept that proposition for one minute. I do not think that many judges approach, for instance, issues such as whether gardaí have or have not assaulted people with the same open mind that a jury would. That is a simple, sad fact. That is why we have jury trial in those cases. I do not believe that judges in those cases can be relied upon to be as open-minded as juries. I have no shame in saying that.”
“On this, there is a new rule brought in that the defamation aspect of it cannot be decided by the jury that decides whether the assault took place. In other words, if somebody says that the victim of a sexual assault is a common prostitute and makes that claim, the woman involved - let us say it was a woman - can sue for the fact that she was assaulted and have a High Court jury but cannot ask that jury to award her damages for the allegation that she is a prostitute, a sex worker or whatever, even though all of the facts are effectively before the same jury. There will be cases - it is not a matter of there could be cases - where highly controversial facts will be disputed between certain people, the resolution of which is a matter of very significant public interest and can and should be determined by a jury.”
“If an issue is to be determined by the courts as to whether a very serious sexual assault took place, a malicious prosecution occurred or there was a sexual assault on an innocent person by a very prominent person and these are to be the subjects of a continuing right to trial by jury, there is no logic in saying that a newspaper or a television programme that says that that happened should be treated entirely differently and 12 people's verdict on the credibility of the alleged victim, assailant or whatever should be involved in one trial but excluded in the other. I make the point to the Minister, and it is involved in a later amendment, as he probably knows, that we have tabled. There may well be a case where someone is defamed in the course of an assault.”