Thursday, June 25, 2009

Defamation Bills and slow governments

The NUJ has said that the damages award of €1,872,000.00 to Monica Leech by a High Court jury is "disproportionate". NUJ’s Irish secretary Séamus Dooley said that, "The current system allows juries to settle on an arbitrary figure".

This is not a problem of which the government is unaware, it's just one that they haven't bothered their arses to fix yet. In 2007 McCann Fitzgerald published a report called Litigation in Ireland: Changing - and Changing Fast. (In retrospect, the title seems a little optimistic: the text is here (PDF).) The report includes a section by Karyn Harty, a Partner at McCann Fitzgerald, called "A Case for Libel Reform".

In that section Ms Harty summarizes the O'Brien -v- Mirror Group Newspapers case - an action originally heard in 1999, with a Supreme Court appeal and a High Court retrial to follow. At the time of Ms Harty's writing another Supreme Court appeal was pending.

The gist of the case was, in short, that Denis O'Brien had been libelled by a newspaper allegation that he had paid £30,000 to the subsequently disgraced Ray Burke. (The newspaper, the Irish Mirror, was represented by McCann Fitzgerald.) The original High Court jury found in O'Brien's favour and awarded £250,000 damages. The newspaper appealed to the Supreme Court, arguing that the award was too high. The Supreme Court agreed, but declined to set an alternative amount for the award. Instead, they sent the case back to the High Court for a retrial.

However, Irish juries cannot be given guidance on the level of award that they might make, and the Supreme Court explicitly declined to give any such guidance.

So the case went back for retrial and the new jury, who could not be told that the Supreme Court had considered £250,000 too high an award, awarded damages of €750,000 (about £590,673). Yeah...

Ms Harty notes that this indicates an urgent need for reform and writes,
The current Minister for Justice has indicated that he intends to press ahead with reforms to defamation law in Ireland in the form of the Defamation Bill 2006. The Bill contains some long awaited reforms, including provision for juries to be given guidance when assessing damages and for the Supreme Court to substitute its own award. We must see whether these changes will be brought into law.
The 2006 Bill was introduced by Minister for Justice Michael McDowell about fifteen years after the Law Reform Commission recommended that the libel and slander laws needed revision. It has not made it into law and is now known as the Defamation Bill, 2008.

That's the one that sees Dermot Ahern get medieval with his idiotic provisions for criminal blasphemy.

Ahern argues that there is urgency to the legislation because of the Supreme Court ruling on the constitutional position with respect to blasphemy. (This is particularly unconvincing given that successive governments have been untroubled by the Supreme Court pointing out that they really ought to do something about the mess that is abortion legislation, or lack of it.) It's a pity that he and his pals in government didn't have a bit more of a sense of urgency in 1999 or 2006 or 2007 when the O'Brien case was making clear the weaknesses of existing legislation. They might have had a sense of urgency in 1991 when the Law Reform Commission told them that the libel and slander laws needed fixing.

The Commission's 1991 annual report says this:
In January 1989, the then Attorney General requested the Commission to undertake an examination of and conduct research and formulate and submit to him proposals for reform in relation to the law of defamation and contempt of court.
Its report (The Civil Law of Defamation (LRC 38–1991)) to the AG recommended, "Clarification of the law by providing that the Supreme Court can assess damages on an appeal".

January 1989? A 1991 LRC report? So, being generous, they've had eighteen years to sort this and they still haven't managed it. Moreover, if Dermot Ahern's handling of the Defamation Bill, 2008, is anything to go by then whenever they do legislate they'll be replacing one set of problems with another of their own making.

Can you imagine how bad things might be if this government could legislate efficiently??

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