The Defamation (Amendment) Bill 2024 has commenced, and juries in High Court defamation actions have been abolished.
It has been promised that this reform will reduce the expense and delay in defamation proceedings. That costs will fall, cases will move faster, and access to justice will improve. However, this may not be the case.
The value of a jury
Defamation is unique amongst torts. It is the only civil wrong defined by reference to the standards of the community. A statement is defamatory precisely because members of society generally would think less of the claimant as a result of it. The question arises: who is better placed to apply that community standard than a jury of ordinary citizens? Replacing that collective judgment with the assessment of a single judge severs the connection between the legal test and the community values it is meant to reflect.
Reduced costs and increased efficiency? A cautionary tale from 1988
The Oireachtas passed the Civil Liability (Amendment) Act 1988, abolishing jury trials for personal injury actions. Stakeholders claimed that premiums would fall as awards decreased, cases would take less time, and the process would be less expensive. In actual fact the opposite occurred: awards went up, costs increased, and the number of cases rose.
The parallels to today are striking. This Department of Justice review, which fed directly into the Defamation (Amendment) Bill 2024, builds its case for jury abolition on the same foundation.
Nothing in the current proposals suggests this time will be different. The same optimistic assumptions about cost and delay reduction appear without credible evidence that removing juries will achieve either objective.
On damages, the Supreme Court's judgment in Higgins v Irish Aviation Authority had already provided juries with a clear, structured framework for awarding proportionate and consistent damages. In doing so, it addressed the most frequently cited criticism of jury trials in one go. That guidance had simply not been given the opportunity to bed in before abolition was pursued.
The experience in England and Wales
Since England and Wales abolished juries for defamation in 2013, albeit with judicial discretion to order a jury trial if appropriate, costs have in fact risen. Expert estimates place the legal costs of a straightforward two-day defamation trial in London at between £1 million and £2 million. High-profile cases, such as Rebekah Vardy v Coleen Rooney, generated legal costs exceeding £4.5 million.
Ireland is at risk of importing the same cost drivers experienced in England and Wales. These include pre-trial satellite litigation over thresholds such as 'serious harm', increasingly technical judicial decision-making that requires extensive legal submissions, and increased procedural complexity. Together, these factors have made defamation litigation in England and Wales even less accessible than before.
Consider, for instance, the reality of a contested serious harm application in England and Wales. A claimant must file witness evidence of actual reputational damage, the defendant cross-examines witnesses and adduces counter-evidence on financial impact, and the court must weigh competing expert testimony on causation. All before the substantive merits of the case are close to being reached.
What was intended as a simple filter has become a mini-trial in its own right, perpetuating the costs and delays reform was meant to eliminate.
What are the alternatives?
Throughout parliamentary proceedings, a number of alternatives short of a wholesale abolition were proposed:
- Hybrid model – retain juries for liability determination to reflect community standards, and assign the task of determining damages to judges to address consistency concerns.
- Judicial discretion – presumption against juries with discretion to order a jury trial where appropriate, mirroring England's approach.
- Complexity gateway – allow judge-only trial for protracted or technical cases while preserving juries for straightforward matters.
- More judges – address delay through judicial appointments rather than abolishing juries.
- Increased Circuit Court jurisdiction – allow the Circuit Court to hear claims for a higher value without eliminating juries for cases involving claims of serious defamation in the High Court.
These alternatives were rejected on various grounds, but what is notable is that Ireland has gone further than England (the very jurisdiction whose experience cautions against optimism) by introducing absolute abolition with no discretionary gateway.
Conclusion
Was reform needed? Yes. Defamation litigation in Ireland suffers from high costs, delays, and occasional disproportionate awards.
Will the abolition of juries be the answer? Comparable experiences here and abroad suggest not.
The more measured alternatives that acknowledged the valuable role juries played have lost out to an absolute abolition, a choice that was driven by politics rather than evidence-based policy. The jury is out on whether the promised efficiencies will be achieved, and the verdict may well disappoint.
