Among the proposed amendments to the Defamation Act 2009, in the draft scheme of the Defamation (Amendment) Bill, is a proposal to abolish the legal right to trial by jury in High Court defamation proceedings.
The proposal is as controversial as it is surprising, since the perceived mischief that it seeks to remedy – the uncertainty and risk of disproportionate awards by juries in such cases – has already been comprehensively addressed by the Supreme Court in Higgins v Irish Aviation Authority.
Henceforth, juries in defamation actions would have the benefit of guidance with regard to the level of damages appropriate to the circumstances of each case through the parameters set out in the judgment of MacMenamin J.
The proposal, if enacted, represents a radical departure from a long-settled public policy that lies behind the legal right of the citizen to jury trial: namely, that fact-finding in serious criminal and civil cases should be determined, where possible, by a jury of fellow citizens.
The principal raison d’etre for the proposal, having been dealt with by the Supreme Court, calls for an examination of the consequences that will ensue (notwithstanding the decision of the court) if the proposed abolition of jury trial is nevertheless proceeded with, namely, the removal of the legal right to trial by jury and the removal of the public from involvement in the administration of justice – a concept as old as the common law itself.
The significance of these consequences is best understood in the context of the right to jury trial in civil proceedings in general.
Right to trial by jury
The entitlement to trial by jury as of right is of ancient origin in the common law. Considered to be of such importance that it was enshrined in the first forerunner of the modern constitution – the great charter of individual legal rights, the Magna Carta of 1215 – it has been part of the law ever since.
Trial by jury evolved as the mode of trial in the common-law courts for civil as well as criminal proceedings.
The sanctity of the right was reflected in the constitutional protection afforded thereto by the 1937 Constitution in respect of serious criminal cases, albeit the protection did not extend to civil causes of action (see Murphy v Hennessy). While the right to jury trial has its origins in the common law, the exercise thereof has long since been regulated by statute.
The concept of jury trial owes its Irish origins to the Vikings and the Normans. Involving individuals (other than the parties thereto) in the resolution of serious disputes was part and parcel of Viking/Norse social fabric. This mode of trial was developed by the Anglo-Normans in medieval times.
It became associated as a bulwark against the arbitrary misuse of authority, the exercise of which ultimately led to the inclusion of the right to jury trial in article 39 of the English Magna Carta 1215. The right was also enshrined in the 1216 Irish Magna Carta (see FH Berry, Early Statutes of Ireland, vol 1, 1907).
There were attempts to curtail or circumvent jury trial altogether in the centuries that followed – the most notorious example of which is the Court of Star Chamber (1487-1641).
The court had a wide jurisdiction, which included causes for libel and slander.
The court was abolished by act of the Long Parliament in 1641, which also reiterated the right to jury trial as provided for by Magna Carta. Thereafter, this mode of trial applied to all cases triable in the courts of common law: King’s/Queen’s Bench, Exchequer, and Common Pleas.
Justification for jury trials
Jury trial had its supporters and detractors then, as it does now, coincidentally for many of the same reasons, which led to considerable political and legal debate. In his Commentaries on the Common Law, the great 18th century jurist Blackstone defended and justified the concept of jury trial in civil matters as the best preservative of English liberty, for it had the distinct advantage of protecting the citizen against the risk of judicial caprice and “it preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachment of more powerful and wealthy citizens” – a justification that remains as valid today as it was when made.
In Ireland, the common-law entitlement to a jury in civil proceedings was ultimately put on a statutory footing by section 48 of the Judicature (Ireland) Act 1877, which provided that nothing contained in the act or the rules of court made thereunder “shall take away or prejudice the right of any party to any action to have questions of fact tried by a jury in such cases as he might heretofore of right so required”.
And so the law remained until independence. Although the common law was carried forward by the Free State Constitution, a new system of courts to administer the law was established by the Courts Act 1924.
The right to trial by jury in civil matters as declared by section 48 of the 1877 act was continued, with minor modification, by section 94 of the 1924 act and section 20 of the Courts Act 1928 (see McDonald v Galvin, Lennon v HSE, and Higgins v Irish Aviation Authority).
The entitlement to jury trial in civil proceedings remained undisturbed until the Courts Act 1971, section 6 of which abolished the right to civil jury trial in Circuit Court proceedings.
The law remained otherwise unchanged until the passing of the Courts Act 1988, section 1 of which removed the entitlement in all personal-injury actions, excepting those for trespass to the person and false imprisonment.
Subsisting extent of entitlement
While there has been a significant restriction on the exercise of the right in civil matters over the last 160 years – commencing with the Civil Bill Courts (Ireland Act) 1851, the Common Law Procedure Acts 1852-1856, and ending with the Courts Act 1988 – there appears to be a perception (common to the judiciary, the profession, and academics alike) that the cumulative effect of these statutory interventions has been to restrict the entitlement to jury trial as of right to a ‘few causes of action’ (see Lennon v HSE and Higgins v Irish Aviation Authority). However, this perception does not withstand careful scrutiny.
Although by far and away the most common causes of action tried by jury today are those concerned with the vindication of the fundamental rights of the citizen guaranteed by article 40 of the Constitution (namely, the rights to liberty, bodily integrity, free speech, and the right to a good name) through suits for false imprisonment, assault and battery, malicious prosecution and defamation, the entitlement to jury trial is far broader than appears to be generally appreciated.
While the restrictions on the right to jury trial in claims for damages for personal injuries (excepting false imprisonment and trespass to the person) brought about by the 1988 act may have added to the misconception that the right only survived in a few types of case, the position in law is altogether different.
No cause of action was abolished by the act. Consequently, the right to trial by jury in all nisi prius actions (that is, actions triable by judge and jury) other than in actions for personal injury (excepting trespass to the person and false imprisonment) remains unaffected.
Except where captured by section 1 of the 1988 act, the entitlement to jury trial in all common-law causes of action declared and preserved by section 48 of the 1877 act (continued, with minor modification, by section 94 of the Courts Act 1924 and section 20 of the Courts Act 1928) subsists for all such actions commenced in the High Court.
In the interest of completeness, it should be noted that the causes of action excluded by reason of the 1877 and 1924 acts are those for liquidated sums, damages for breach of contract or the enforcement of contract, and for the recovery of land.
The right to jury trial was subsequently conferred by statute in respect of a number of new statutory causes of action (see section 18.3 of the Air Navigation Act 1936, inserted by section 4 of the Air Navigation Act 1965; part IV of the Civil Liability Act 1961; and section 44 of the Succession Act 1965.)
The right to jury trial conferred by these provisions in respect of claims for damages for personal injuries was abolished by the 1988 act.
Exercise of right and abeyance
Notwithstanding the continuing subsistence of the right in all other common-law causes of action for wrongs, the exercise thereof gradually fell into abeyance, except for those causes of action in trespass, malicious prosecution, false imprisonment, and defamation.
This may well account for the perception that civil jury trial is confined to a “few areas” (see Higgins v Irish Aviation Authority at paragraph 43: “One of the few areas in which a plaintiff is entitled to have a jury determine the issues of fact and to assess damages is in defamation actions.”). While factually correct in practice, the position at law is altogether different.
There are a multiplicity of reasons to explain the decline in the use of jury trial in the many causes of action where the entitlement nevertheless subsists. Most significant among these, in a broad sense, are probably the social, political, and economic consequences of the Great War, the War of Independence, the Civil War, the Economic War of the 1930s, and the Second World War, to which may be added perceptions of delay, expense, and uncertainty – albeit that the latter are features associated with litigation in general.
Whatever the explanation, the contemporary position appears to be either one of a general lack of awareness or a misunderstanding of the extent of the right to jury trial in civil matters, a right that is far broader than one would glean from a perusal of the causes of action generally encountered in the Civil Jury List.
The continuing subsistence of the entitlement to jury trial in all common-law causes of action for wrongs (commenced in the High Court) extant at the time of the enactment of the 1877 act (excepting causes of action subsequently abolished) clearly gives rise to a professional duty, particularly on the part of practitioners engaged in litigation, to be in a position to give advice concerning the entitlement to jury trial as of right in any such cause of action, in order to afford the client the opportunity to consider whether or not the right should be exercised.
The entitlement to jury trial in defamation derives a particular significance from the nature of the tort, which is only committed when a defamatory statement concerning a person is published to a person or persons other than the person concerned (the person to whom it is understood the statement refers) – see section 6 of the Defamation Act 2009.
A statement is defamatory if it tends to injure a person’s reputation in the eyes of reasonable members of society (section 2 of the Defamation Act 2009).
It is hardly a surprise, therefore, that the Supreme Court has observed that, in defamation proceedings, the jury is in a unique position with regard to making findings of fact and the assessment of damages.
Who better than the representatives of society – the jury – to determine whether the plaintiff’s reputation has been injured in the eyes of reasonable members of society and, where so found, to assess the amount of the compensation in respect thereof?
It is not just the ancient legal right of the citizen to trial by jury, but also the concept of the participation of the public in the administration of justice, at which the proposed abolition strikes.
These considerations aside, at the very least and if only out of respect for the Supreme Court, the implementation of the parameters on quantum to assist juries set out in Higgins ought firstly to be facilitated over a reasonable period in practice before the drastic step of abolition is contemplated.
In the meantime, if further reform beyond guidelines is considered necessary to the achievement of balanced awards and consistency, the simple mechanism of making a jury indicative with final determination of quantum left to the trial judge on application of either party to the proceedings would suffice.
Look it up
- Bradley v Maher  IEHC 389
- Cox v Massey IR 343
- DF v Garda Commissioner  IESC 44
- Finlay v Murtagh IR 249
- Higgins v Irish Aviation Authority  IECA 322;  IESC 29;  IESC 13
- Higgins v Irish Shipping 178
- Lennon v HSE  IECA 92
- Liston v Leinster Bank  IR 77
- McDonald v Galvin [1976-1977] ILRM 41
- Magill v Magill 2 IR 533
- Murphy v Hennessy  IR 378
- Secretary of State for War v Studdert  IR 240 and 38 ILTR
- Sheridan v Kelly  IESC 26; 1 IR 314
- Air Navigation and Transport Act 1936
- Air Navigation and Transport Act 1965
- Civil Bill Courts (Ireland Act) 1851
- Civil Liability Act 1961
- Common Law Procedure Acts 1852-1856
- Courts Acts 1924, 1928, 1971, 1988
- Defamation Act 2009
- Draft scheme of the Defamation (Amendment) Bill
- Supreme Court of Judicature (Ireland) Act 1877
- Succession Act 1965
- Berry, Early Statutes of Ireland (vol 1, 1907)
- Blackstone, Commentaries on the Common Law (vol 3, chapter 23, pp379-382)
- Bullen & Leake & Jacob’s Hong Kong Precedents of Pleadings (third edition, 2013, Sweet & Maxwell)
- Wylie, Judicature Acts (Ireland) and Rules of the Supreme Court (1905, pp528-529)