On the issue of the Supreme Court second-guessing a jury, I refer to the words of the then Chief Justice, Mr. Finlay, in Barrett v. Independent Newspapers Limited that the assessment by a jury of damages for defamation has an “unusual and emphatic sanctity”. This is an interesting point to bear in mind.
While I will not rehearse everything I said on this matter on a previous occasion, I draw the Minister's attention to a case that was then unreported, Independent News and Media plc and Independent Newspapers (Ireland) Limited v. Ireland, which was related to the case of De Rossa v. Independent Newspapers, in which the defendants lost their case in Ireland and so sued in the European Court of Justice. This was the argument made in Strasbourg in 2005 by the legal representatives of the State:
The applicants were effectively asking the court to assume that jurors were unable to value reputation in accordance with certain factors outlined to them in order to arrive at a rational and proportional decision without further guidance. Not only was that an inappropriate assumption but the calculation made by a jury attracted an even wider margin of appreciation than that completed by, for example, a judge. In this latter respect, they explained why framing and applying defamation laws in a modern democracy was a complex exercise requiring a delicate calibration of a variety of interests. The domestic authorities were therefore clearly better placed to judge how the most appropriate balance could be struck in a given situation and, further, an authority comprising a group of informed, reasonable and conscientious citizens (a jury) would be best placed to reach that balance given their direct and continuous contact with the realities of life within their countries.
I recount this to put on record the great significance attached by august legal authorities to what has been described as the sanctity of juries. There was some suggestion yesterday that jurists are mere Joe Soaps who could not be expected to know much. We must bear in mind that legal authorities do not take that view. This Government, in its last incarnation, announced here the doctrine of the continuity of the two Houses of the Oireachtas. One assumes the Minister will agree there is an unbroken seam between the last Government and its representation in Europe and this Government.
I am sure I will be allowed a flashback because I am steaming with a cold. This flashback relates to the question of feelings, as they are assessed in damages. We have been told that feelings are not of any consequence in this regard. I draw Members' attention to the judgment of Henchy J. in Barrett v. Independent Newspapers Limited. He stated:
It is the duty of the judge to direct the jury that the damages must be confined to such money as would fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right thinking people as a result of the words complained of.
The learned judge, Mr. Justice Henchy, placed feelings first. The question of feelings is relevant, therefore, despite what was said here yesterday by learned and august barrack room lawyers such as Senator O'Toole and others whose blushes I will spare, although I am sure they will not spare mine as they seek to correct me. Although they can be glossed any way one likes, these are the learned words of Mr. Justice Henchy to whom, for his reasonable, decent and humane dissenting judgment in my own case, I shall be forever grateful.