AFTER deliberating for nine hours over two days, the jury in the libel action taken by Minister for Social Welfare, Mr De Rossa, against the Sunday Independent failed to reach agreement yesterday and was discharged.
The jury had unanimously, reached a verdict, answering "no" to part (b) of the first question on the issue paper but was unable to reach agreement on part (a) of that question or to questions 2 and 3.
In discharging the jury, Mr Justice Moriarty said he noted that the jury's answer to Mr De Rossa's claim as regards question 1 (b), namely that the article meant he personally supported anti-Semitism and violent communist oppression, had been answered "no".
The jury of nine women and three men was discharged on the 14th day of the action, after they had deliberated for seven hours on Wednesday night and two hours yesterday.
Counsel for the parties will return to court today to discuss what is to happen in the case. The question of costs of the hearing, which opened on February 26th, will also be before the court.
It is expected that the case may be relisted with a view to setting a date for a new trial. The costs of each side for the 14-day hearing and a number of court sittings earlier to deal with preliminary matters could be close to £300,000 on each side.
If there is to be a retrial, it would be unlikely before the autumn as a number of other High Court jury cases are already listed.
Mr De Rossa, leader of Democratic Left, brought the action following an article in the Sunday Independent by Eamon Dunphy on December 13th, 1992.
The jury was asked three questions:
1. Do the words complained of mean (a) that the plaintiff was involved in or tolerated serious crime? (b) that the plaintiff personally supported anti-Semitism and violent communist oppression?
2.If the answer to 1 or either part thereof is "yes", were the words complained of published by the defendant without genuine belief in their truth; and
3. If the answer to 1 or either part thereof is "yes" and whether the answer to 2 is "yes" or "no", assess damages.
When the court sat yesterday, Mr Justice Moriarty repeated that the overriding matter was that merely for the sake of achieving a complete verdict, no lady or gentleman of the jury should find himself or herself pressurised or stampeded to change his or her sincerely held view, except by rational review and comment and discussion with fellow jurors.
When the jury returned at 1.10p.m. the judge asked if they had made any further progress. The jury forewoman said: "No, your honour."
The judge then asked if the situation still was that they had reached a majority verdict in relation to one part of one question. The forewoman said it was a unanimous verdict on one part of the question.
Mr Justice Moriarty asked if the jury felt there would be any benefit whatsoever by deliberating further after 2.15 p.m. The forewoman replied: "At this stage, no.
The judge said in all probability he was going to have to discharge the jury's services.
Mr Kevin Feeney SC, for Independent Newspapers, suggested that if the issue paper (with the questions and the partial verdict) was signed, it could be handed to the judge. Mr Patrick MacEntee SC, also for the defence, said the matter could be resolved by a "silent" issue paper being handed to the court.
Mr Paul O'Higgins SC, for Mr De Rossa, said he was anxious that discussion took place before the jury was discharged.
Mr Justice Moriarty said he would receive the issue paper which would record the verdict that the jury had been able to arrive at. There would be no benefit in deliberating further on outstanding matters.
The judge said he noted that the jury's answer to Mr De Rossa's claim as regards question 1 (b) - that the article meant he supported anti-Semitism and communist oppression - had been answered "no".
Obviously that made it clear why no progress could be made on questions 2 and 3. The jury had indicated that it was clearly unable to reach unanimity or an acceptable majority on question 1(a) and it had obviously inquired very hilly into that.
In those circumstances, the jury should not be detained further in the case.
Mr Justice Moriarty said that, on behalf of himself and the legal system, he wished to express a sincere word of gratitude to the 12 jurors for their great diligence for the greater part of four weeks.
That had been in circumstances that highlighted the need in the future of ensuring somewhat better facilities for juries.
"You have been treated in a way that far from befits the importance of your role," added the judge. "I am sorry that took place." It was no consolation that their successors may have a better regime.
He told the jury that they would not have to do jury service again for at least 20 years.
During their deliberations on Wednesday evening, lawyers involved in the case provided sandwiches and refreshments for the jury. Food and hotel accommodation is provided only to juries in criminal cases and not to juries in High Court civil actions.
Mr De Rossa's libel action had originally been heard before Mr Justice McCracken and a jury last November. However, on the eighth day of the hearing, the jury was discharged after an article in the Sunday Independent the previous weekend. Mr De Rossa was awarded his legal costs and expenses. It was estimated that the costs of both sides for that trial would total £200,000 each.
Later, a conditional order for the sequestration of the assets of Independent Newspapers plc was made by Mr Justice Carney in the High Court following complaints by Mr De Rossa about articles in the Sunday Independent last November 24th. Those proceedings have not yet been finalised.