Sir, – The magnitude of the consequences that would flow from the abolition of the right to trial by jury in High Court defamation proceedings necessitates the calling out of the factual and legal assertions made by Michael Kealey (“Jury trials in defamation actions are unpredictable, slow and far too costly”, Opinion & Analysis, August 9th).
The immediate consequences of abolition are, firstly, that the parties to the proceedings would be stripped of their right to chose the mode of trial by which the case is to be decided, whether by a judge alone or by judge and jury and, secondly, the need for a jury being dispensed with the public would be removed from involvement in the administration of justice, consequences which are inherently undemocratic. Jury trial is a quintessential expression of our democracy and as such inevitably calls into question the motives of those who seek to abolish it as the method by which court proceedings are to be decided.
The assertion that retaining jury trial in defamation cases is an “anachronism” when most civil cases are tried by a judge alone is disingenuous. Many civil causes of action, such as actions for breach of contract, recovery of debt, recovery of land and claims in chancery, to name some, do not carry the right to trial by jury. However, when the tort of defamation is placed in the classification of actions where it belongs, that of civil wrongs, an entirely different picture emerges.
All High Court actions for civil wrongs recognised by law at independence, including defamation, carry an entitlement to a jury at the election of any party to the proceedings, save in actions claiming damages for accidentally caused personal injuries since 1988. The right to choose trial by jury is most frequently exercised in actions concerning the fundamental rights of the citizen, the right to liberty, to the inviolability of the person, to freedom of speech and the right to a good name. Of these important rights, if abolition is enacted, in defamation alone would the citizen be deprived of the right to choose and compelled to have the case decided by a judge alone, a wholly discriminatory and entirely inconsistent state of affairs.
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Which leads to the assertions made concerning vindication by a judge alone rather than a jury and the example given of the “Wagatha Christy” case in England. It should come as no surprise that following the outcome Coleen Rooney made no reference in her statement to a preference for vindication of her name by a jury rather than a judge. Unlike the citizens in this State, who still enjoy the right to have their fundamental rights vindicated by jury trial, she was deprived of that choice by Act of Parliament in 2013. The case is, however, apposite in another context, the increase in the length of the legal process and legal costs since abolition in England and Wales.
The assertion that it cannot seriously be suggested a plaintiff is any less vindicated by the verdict of a senior judge than a jury does not withstand careful scrutiny. On the contrary, it has been so suggested. The reason is simple. Vindication by a jury verdict is particularly important to a plaintiff since it represents a vindication of the plaintiff’s good name by fellow citizens for an injury to reputation in the eyes of reasonable members of society; who better than the representatives of society itself, the jury, to make that decision. If anything cannot be seriously suggested, it is that the position of a single judge is comparable to that of a jury. Indeed, no lesser body than the Supreme Court has consistently recognised not only the importance and significance of vindication by jury verdict to a plaintiff but also the unique position the jury occupies in defamation cases, representing as it does an impartial and reasonable cross-section of society.
The assertions made concerning the benefits of abolition, the shortening of the legal process, greater predictability of outcome, reduction in appeals and consequential reduction in legal costs, are reminiscent of the claims advanced by the powerful and vested interests that campaigned for the abolition of jury trial in personal injury cases. The government of the day eventually succumbed to the pressure in 1988; however, the claimed benefits proved illusory. Awards went up, appeals from judge alone decisions increased, there were more claims, the legal process lengthened and legal costs rose exponentially and in the event so too insurance premiums.
It is, however, unnecessary to look back to the 1990s to learn the lesson the experience of abolition has to teach. The experience in England and Wales since the removal of the presumption to trial by jury in defamation, and the introduction of similar measures to those included in the proposals adopted by the Government, should serve as a salutary warning. The legal process has lengthened, has become more complicated and altogether more costly; the “Wagatha Christy” case mentioned earlier being one of several recent cases that serve to illustrate the point. It is hardly a surprise therefore that several of those who supported abolition, including a leading defamation KC, are now publicly advocating return to jury trial in England and Wales.
All interested parties in this debate would do well to listen to what they have to say and why.
Finally, the assertion that the risk of appeal from the reasoned decision of a judge is reduced is mistaken.
The opposite is the case, as the experience following abolition in personal injury cases demonstrates.
The reason is again simple. The sanctity with which a jury verdict is viewed by our appellate courts is such that it is not to be disturbed unless it is patently such that no reasonable jury would have arrived at it. The rationale for this approach is that a jury verdict represents the combined wisdom of 12 people. The decision of a single judge does not enjoy the same respect.
We should all pay attention. It’s not too late. – Yours, etc,
Mr Justice BERNARD BARTON,
(Retired, Head of the
Civil Juries Division of
the High Court , 2017-2021),
Stepaside,
Co Dublin.