Changes to defamation law 'undemocratic', says former judge

The Government first announced changes to the existing Defamation Act in March, with then-justice minister Simon Harris saying the removal of juries from defamation cases would reduce 'disproportionate and unpredictable' awards. File picture: Larry Cummins

A former High Court judge will label the Government’s proposal to remove juries from defamation actions as “inherently undemocratic” at the Oireachtas justice committee on Tuesday afternoon.

Retired High Court judge Bernard Barton will tell the committee the proposal to remove juries from defamation actions would be a “far-reaching and fundamental alteration” of the law and it would lead to “serious consequences”.

The Government first announced changes to the existing Defamation Act in March, with then-justice minister Simon Harris saying the removal of juries from defamation cases would reduce “disproportionate and unpredictable” awards.

However, Mr Justice Barton has said if juries are removed, it would remove the public from the administration of justice in defamation cases.

“In essence, if the proposal were enacted, the democratic input into the decision-making process inherent in a trial by jury would be extinguished,” Mr Justice Barton will tell the committee.

“Abolition of the legal right to trial by jury would constitute a fundamental and profound shift in public policy which has long underlain the administration of justice in Ireland both before and after independence.

Put simply, the legal right to jury trial lies at the heart of our system of justice.”

Mr Justice Barton will say the recommendation to remove juries from defamation actions is “legally flawed” due to a recent decision by the Supreme Court, which sets out guidance as to the correct level of damages awarded in individual cases.

He will say the case, where an Aer Lingus pilot received €202,500 in damages on appeal to the Supreme Court after having his award cut by Court of Appeal, will allow for future defamation cases to be resolved with “proportionate and fair” awards.

Mr Justice Barton will also question whether or not legal costs will fall if juries are removed. He will tell the committee legal costs have risen following the removal of juries in both England and Wales, referencing the recent high-profile case involving Rebekah Vardy and Coleen Rooney.

The Bar of Ireland will also criticise the proposal to remove juries as well as raise concerns about plans to introduce protections against Strategic Lawsuits against Public Participation (SLAPP).

It will say anti-SLAPP measures should be paused until after EU regulations are finalised.