Defamation (Amendment) Bill 2024: Report and Final Stages Seanad Éireann — 2026-01-21 ============================================================ Michael McDowell (IND), National University of Ireland This is an amendment to soften the absolute abolition of jury trial and to give to the President of the High Court an overriding jurisdiction where, by reason of the exceptional nature of the case or the identity of one or more of the parties in the case, it is it is preferable that it should be tried with a jury or that the claim or counterclaim in the proceedings includes other issues triable in the High Court with a jury and that the interests of justice would be served by the trial of the claim in defamation with a jury. That is a very narrow proposal to soften the absolute nature of the Minister’s proposed reform. To soften it further, subsection (4) provides that in any case to which subsection (3) applies, it is for the trial judge to determine the amount of any damages, including any aggravated or exemplary damages to which the jury has found the plaintiff is entitled. The amendment speaks for itself. I understand the Minister’s position and I do not propose to rehearse all the arguments at length but I do believe – and I saying it now; mark my words – there will be a time when a defamation case of sufficient public importance comes before the High Court where one side or the other loses on the basis that they are disbelieved by a High Court judge, presumably with a written decision, and it may give rise to very significant political controversy thereafter. That is my worry. I am not talking about the Albert Reynolds decision but I am talking about cases where the public would accept and be happier with a jury determination of the fact of defamation one way or another and the credibility of the parties rather than a single judge. It did occur to me that maybe in such cases the President of the High Court would appoint a divisional court to decide a controversial case of that kind. Maybe that is a way around it to some extent but I do believe there will be a time – it will certainly come – where a highly controversial black-and-white acceptance of whether something was or was not the case of a highly important case from the point of view of the public occurs. Take the Australian case of whether a leading cleric did or did not abuse a mass server. People will look at the outcome and they will ask themselves was it the particular judge’s prejudices that affected the matter and was it a case that would have been better determined by 12 uninterested and independent people on a matter of such sensitivity. Amendment No. 2, which Senator Conway will second, simply deals with the consequences of making amendment No. 1. I will not delay the House any further. We have discussed this issue at length but I think it is an important point. I believe it is wrong to exclude from the judicial system determination of very important facts by a jury especially when the actual outcome of the case could have dramatic political and social consequences. It is for that reason that it is a mistake on a blanket basis to abolish all jury trials in defamation cases. I make the point that there are cases where defamation is coupled with, say, claims in assault or trespass. In those cases, it seems to me to be artificial that a jury would arrive at one view on the assault to which a plaintiff is entitled, including a sexual assault, but a collateral issue in the same case as to whether there was a defamation related to the other charge would be decided by the judge. It seems to me that if a court sits to determine the outcome of litigation, it should be either all jury or all non-jury. Where there is a mix, which there will be under the Minister’s amendment, of issues triable by a jury and triable without a jury it will not serve any useful purpose. Supposing in a sexual assault case the jury finds there was a sexual assault, is the judge going to determine the defamation issue separate from the jury’s view, I wonder? I will leave it at that. --- Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted. Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-01-21/debate/main Retrieved: 2026-08-14T04:54:31+00:00 Sitting date: 2026-01-21