Oireachtas Joint Committee Report On Defamation Reform May Raise Eyebrows

• Published date: 10 October 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Libel & Defamation
• Law Firm: RDJ LLP
• Author: Mr Darryl Broderick

The Houses of the Oireachtas Joint Committee on Justice recently (September 2023) produced a report on the General Scheme of the Defamation (Amendment) Bill. The committee made a number of eye-catching recommendations, some of which might be considered radical when contrasted with the Report of the Review of the Defamation Act 2009 ¹ and the General Scheme of the Defamation (Amendment) Bill ².

In this insight Darryl Broderick analyses some of the more eye-catching recommendations and tries to plot where defamation reform goes from here.

Key Recommendations

Abolition of juries

The committee recommended retaining juries to make findings of fact and to make an indicative finding of an appropriate level of damages but recommended that ultimately judges would be the final arbiter of the quantum of any award of damages. Since both the Report of the Review of the Defamation Act 2009 and the General Scheme of the Defamation (Amendment) Bill were published, there has been some eloquent argument made to retain juries in some shape or form. It is, however, difficult to see how the retention of juries in line with these recommendations will serve any party to defamation litigation particularly well. If juries are maintained it still invariably makes litigation involving juries more expensive, as jury trials tend to go on longer than non-jury trials as juries need to be selected, they need to be charged by the Judge and more time needs to be spent ensuring that juries understand the evidence put to them than if a judge heard the case alone. Some submissions were made to the committee that since juries were abolished in England and Wales defamation litigation has become more expensive there. If this is true then there may well be other reasons for that.

If juries make an indicative finding of an appropriate level damages but the judge is the ultimate arbiter, where does that leave the guidelines given by the Supreme Court in Higgins v Irish Aviation Authority ³ when the Supreme Court outlined non-binding ranges of damages that might be awarded depending on the seriousness of the defamation. The committee recommended retaining juries to make findings of fact and to make an indicative finding of an appropriate level of damages but recommended that ultimately judges would be the final arbiter of the quantum of any award of damages. Since both the Report of the Review of the Defamation Act 2009 and the General Scheme of the Defamation (Amendment) Bill were published, there...