Judge Barton slates media backing for libel-jury ban

Legal experts have disagreed on the right to trial by jury in matters of defamation. 

A Government review published earlier this year proposes removing jury trials in defamation cases.

RTÉ’s head of legal Paula Mullooly told the Law Society’s defamation conference (13 October) that a jury defamation trial is equivalent to gambling at a casino in terms of predictability.

The lawyer expressed disappointment at the lack of any potential cap on the level of damages that could be awarded in defamation trials.

“Prudent business people don’t like to bet their business in a casino,” she said, adding that this has a chilling effect on journalism.

Other speakers, however, disputed that trial by jury should be eliminated in defamation matters.

Retired High Court judge Mr Justice Barnard Barton said he approached the question as a matter of principle.

Those who live in a democracy, in a free society, have a constitutional right to be tried by a jury of their peers, he said.

Primary rights

This is one of the primary rights of a citizen of Ireland, he said, and such a common-law right should not be interfered with, or disposed of, by any arbitrary decision.

Moving from jury to judge to decide these matters is “preposterous”, he said, since judges live in a rarified atmosphere, and defamation occurs in the community.

“Defamation is an injury to the person's reputation in the eyes of reasonable members of society, and who better to decide whether material is defamatory or not than the representatives of that society where the tort is said to be committed?” he added.

Speaking as a judge himself, he said he knew the judiciary largely came from privileged backgrounds. 

“What do they know about how ordinary members of society think about anything, let alone defamation?” he asked. 

The judge said he had presided alone over jury cases and it is “a disaster” to have those decisions made solely by judges. 

“Judges in England are finding that out,” he said, referring to unfavorable press headlines about the judiciary there. 

“We do not want the judiciary here dragged into that sort of political mish-mash,” he said.

Erroneous

The judge said that the proposal to do away with jury defamation trials is wholly erroneous and there has been no proper analysis of judge-only defamation trials in the jurisdiction of England and Wales.

“The Oireachtas looked at this in great detail only a decade ago and decided that it would retain juries. I ask you, what has changed?” he said.

He questioned which interests or forces are seeking to get rid of juries.

“It's not the ordinary citizen,” he commented.

Mr Justice Barton said he would welcome guidelines for juries to help them decide on the level of awards. 

“The jury list is robbed of judges all the time to feed the shortages in other divisions,” he commented, though these causes of action are concerned with the vindication of fundamental constitutional rights such as the right to a good name.

This is now the appendix of the High Court, he commented, although jury trial was centre stage when he began his legal career.

Mischief 

“There is a mischief there which needs to be addressed,” he said.

The judge said that Kehoe v RTÉ is a seminal decision, and an example of a case that the jury got absolutely right.

“It involved huge, complex legal issues that the jury got right,” he said.

The judge said he found it strange that the media portrays itself as a champion of democracy yet wanted to get rid of the right to jury trial in libel actions.

“The Fourth Estate championing the abolition of a person’s right to be tried by jury … is also championing the cause of taking the public out of the administration of justice. 

“Is that healthy in a democracy?” he asked.

Speaker Mark Harty SC commented that Paula Mullooly was speaking for “the establishment” [RTÉ] in asking for juries to be abolished.

What a judge decides carries none of the weight, quality, and value of a jury decision, he said, urging reconsideration of the topic.

Some tabloid media organizations will know that judges have no interest in their work at all, and no strong positive views of their publication, the SC said.

'Establishment' media 

“Media organizations that do not form part of that establishment … would see themselves as never getting a fair hearing from a judge,” he commented.

The readership for their journalism is a very different one, he noted.

It is better that this is left in the hands of the public when liability is admitted, the SC said.

Issues of quantum have now been much improved because of subsequent Supreme Court decisions, he pointed out.

Greater certainty about payment bands is for the best, he said.

Juries can be told which damages band the case is in, he added.

“What is not clear is why that isn’t welcomed more heartily by RTÉ, or by any media defendant,” the SC said. 

“I can accept there have been outrageous awards on both sides,” but these are very regularly reduced on appeal, he said.

Harty added that delays in jury trials before court were often because of resourcing.

Awards in England and Wales went up 20% after getting rid of libel trial juries, the conference heard.

The recent nine-day 'Wagatha Christie' non-jury libel trial saw legal costs in excess of Stg£4 million.

The claim that jury trials are more expensive is not evidenced by any actual figures, Mark Harty pointed out.