The Defamation Act 2009 – A Submission to the Minister
The Defamation Act, 2009 came into effect on 1 January 2010. Section 5 provides:
(1) The Minister shall, not later than 5 years after the passing of this Act, commence a review of its operation.
(2) A review under subsection (1) shall be completed not later than one year after its commencement.
The Minister in question is the Minister for Justice and Equality.
At the time of writing it is not clear if a review has commenced. With a general election looming it is likely a new Minister will have to deal with the outcome of the review.
Jury or Non- Jury Assessment
Based on our experience of handling defamation, libel and slander cases since the inception of the Defamation Act, we wrote to the Minister highlighting a gap as we see it in the legislation – whether where an offer of amends has been made in a defamation, libel or slander action the parties are entitled to a jury or non jury trial in the High Court.
In defamation, libel and slander claims an offer of amends allows a defendant to admit liability and make proposals for apology, damages and/or costs. If such an offer has been made and the parties cannot agree the precise terms either can have recourse to the court which can impose costs and other sanctions on a party it considers to have acted improperly or unreasonably. Under the legislation as it stands it is unclear in High Court cases whether this is to be a jury or non-jury court.
One of the effects of the ambiguity as to the type of court is that where all the elements should be conducive to settlement an avoidable contentious hurdle is present. This is due to the fact expectations as to outcome are often framed by the type of court in which a matter might be heard with plaintiffs generally expecting a better outcome from a jury and defendants favouring judges sitting alone.
Submission to Minister
The uncertainty has prompted us to make the following submission to the Minister.
We note that under section 5(1) of the Defamation Act 2009 you are obliged to commence a review of the Act’s operation within five years of 1 January 2010. As solicitors practising in the area of Defamation we wish to highlight an issue which we believe would benefit from consideration in the review.
Section 23 of the Act deals with the effect of offers to make amends and provides that in the event of the parties to an action being unable to agree the compensation, costs, apology or other matters after a Defendant has made an offer of amends such matters are to be decided by “the High Court or, where a defamation action has already been brought, the court in which it was brought” [sub sections (a), (b) and (c)]
We respectfully submit that the legislation as it stands renders it unclear as to whether the Court in such instances is to be a judge sitting alone or whether it is to be a judge sitting with a jury.
This is a matter of not inconsiderable account when it comes to dealing with defamation actions in particular when it comes to trying to resolve them by negotiation. In our experience very often the approach of a party can be significantly tempered by the prospect of jury as opposed to judge sitting alone trial. The fact the Act is silent on the matter and the fact the issue has not been specifically addressed by the courts at least up to the latter stages of 2015 has allowed parties contend with equal conviction that the appropriate forum for settling differences is either a judge sitting alone or a judge and jury.
We are sure you will agree that, depending on one’s perspective and the circumstances of any particular case, one type of forum can seem much more attractive to some parties and the other to other parties. In our view the current uncertainty can often give rise to a wider than necessary gap in parties expectations which adds an impediment to speedy and effective resolution especially at a point in litigation where the object is to narrow differences and provide an environment that has early amicable settlement as its immediate goal.
Accordingly we would urge you to have the matter given consideration in your review especially as it is one we believe is amenable to relatively simple legislative clarity in any future revision of the Act.
We look forward to hearing in due course.
THOMAS BARRY & COMPANY
We wait to see how the submission fares.
Author Bio: Thomas Barry is a Partner in Thomas Barry & Company, a legal practice based in Dublin. He has over 30 years experience. He regularly writes on legal issues.