Sir, – The Government is determined to proceed with the proposal to abolish the right to trial by jury in High Court defamation cases notwithstanding opposition by all non-Government parties, many Independents, the Bar Council, the Law Society, the Irish Council for Civil Liberties and prominent legal academics.
That should serve as a warning to anyone concerned with or interested in the preservation of the civil liberties.
If the proposed abolition of the right to jury trial is enacted, it will have far reaching consequences.
Not only will it strip the litigant of the right to choose the mode of trial by which the facts of the action are to be decided but it will also strike down a fundamental principle at the heart of the legal system by removing the jury as the tribunal of fact.
RM Block
The concept of the participation of the public in the administration of justice in prosecutions for serious criminal offences or in serious cases involving civil wrongs through jury trial is as old as the law itself.
Apart from acting as a bulwark against the arbitrary abuse of power, this mode of trial serves to protect the litigants from the risk of judicial caprice, gives to the public that share in the administration of justice which it deserves and prevents the encroachment of more powerful and wealthy citizens in the decision-making process.
The function of fact finding by 12 impartial citizens chosen at random from the Electoral Register represents a quintessential expression of democracy in the legal system and has been part and parcel of defamation law since the wrong first evolved in the late 15th century.
Of the civil wrongs involving the fundamental rights of the citizen mentioned, only in a case for defamation will the litigants be deprived of the right to a jury.
It is astonishing that no explanation has been proffered to justify the creation of this irrational anomaly, particularly against a background where the Oireachtas Joint Committee on Justice unanimously recommended the retention of jury trial.
The rejection of the Committee’s unanimous recommendation without any explanation and the perseverance by the Government with the proposal is all the more extraordinary when one considers that the legal and factual premise set out in the Department of Justice Report on which abolition is founded was subsequently swept away in 2022 by the Supreme Court in the Higgins case, a watershed decision in defamation law which fundamentally alters the way in which compensation will be assessed in all future defamation cases whether tried with or without a jury.
The court took the opportunity to set out all the categories of damages, and guidelines or parameters on the levels of damages to be applied in any given case, the purpose being to achieve greater consistency and proportionality of awards with the wrong involved.
If the law on the assessment of damages in defamation and the guidelines/ parameters set out in Higgins are working, why is the Government ignoring the Supreme Court and proceeding with a proposal that would do away with an ancient legal right for no discernible benefit founded on a legal and factual premise which no longer represents the law?
It is late, but not too late to stop. – Yours, etc,
JUDGE BERNARD BARTON,
(Formerly Head of the Civil Juries Division of the High Court),
Wicklow.
