Details of Address from Hugh Mohan, Chairman of the Legal Advisory Group
Hugh Mohan was called to the Bar in 1985. He was called to the Inner Bar in 2000. Hugh chaired the Legal Advisory Group on Defamation. He has practised widely in the defamation are acting for both plaintiffs and media organisations alike.
Hugh Mohan firstly said that he was delighted to have the opportunity to present the report and to hear the deliberation and discussions.
He said that he would give an overview of what was contained in the report, Paula Mullooly would deal with new defences later and Eoin O'Dell would deal with the issue of the Press Council.
Towards a fairer and more efficient defamation regime is the heading and that was what the group sought to achieve in the report - a fairer and more efficient regime
As the Minister said the LRC had done invaluable work in their report and Mr Mohan said it was very much used as a reference by the group.
The report is broken into 3 parts, the terms of reference set out specifically what the group were to look at and therefore the first part sets out recommendations dealing with these areas specifically. The 2nd part deals with recommendations generally because at the end of the terms of reference the Legal Advisory Group were asked to take a look a the law in a general context. In the 3rd part they put forward a general scheme of a defamation bill to replace the 1961 Act, in doing this the group had before them the proposed defamation bill from 2001.
Qualified Privilege in a Public Interest Setting
The group have put forward a Defence of Reasonable publication. There are 2 reasons why they recommended this, Article 10 of the ECHR and the case law and jurisprudence that followed in the 1990s. The Case law seems to set forward that there are duties and responsibilities inherent in the exercise of Freedom of Expression. The convention offered allows protection provided that those seeking to avail of it act in good faith and reasonably. Taking a look at other jurisdictions such as Australia, New Zealand, Canada and the UK, all have some form of protection based on qualified privilege in a public interest setting therefore we are out of step in that we do have a common law background. Our defence of reasonable publication was subject to different relevant matters, which the court has to consider. These are flexible; the idea is to allow the basis of a defence to be established, the High Court and Supreme Court could then mould this. Mr Mohan said that Paula Mullooly would deal with this to a greater extent later.
Role of Judge and Jury
Underpinning this was the valuable role juries have to play in defamation cases, given the importance of getting the perspective of the ordinary person in deciding whether a matter was defamatory. That was the key thing that informed the group, juries are an essential component and should be retained. Then there was the distinction between circuit court case and high court cases, there are many smaller cases that do not deserve to be in the high court driving costs up. We decided that the cut off limit should be around €50k, cases in the circuit court below that would be decided by a judge sitting alone. There are more fundamental problems with high court cases; both parties are completely restricted in what they can say to juries about damages. We found that was contrary to good practise and against the interest of justice. We felt that juries should remain but that parties should be able to make submission to the jury on the issue of damages with the judge then having the last say and he would be obliged to give directions on damages to the jury. He would have regard to matters, set out in the report, such as the gravity of the allegations, circulation of publications, whether an apology was tendered or not. Another thing we looked at at was a specific statutory provision that the Supreme Court could put in place its own award on appeal if it felt the need to do so because too often cases are being dealt with in the Supreme Court and then referred back to the High Court to be dealt with which is unnecessary escalation of costs and we felt that a specific provision should give them that power.
Presumption of Falsity
This has been a vexed area with lots of differing views. It was very well dealt with in the LRC paper. When the group looked at it they felt that the relevance of this is only apparent where defence of truth is pleaded. They felt that in most cases the plaintiff does give evidence first in any event. What needs to be addressed here is where the plaintiff does not choose to give evidence and the consequent burden it might pose for the defendant. The group suggest that where a plaintiff is bringing a libel action they would be required to swear and file a verifying affidavit leaving the prospect of a perjury claim if it turned out to be false.
Lodgements
Presently in defamation cases where liability is not admitted the defendant is not allowed to make a lodgement. That in our view confers an unfair advantage on the plaintiffs. It also drives up costs and lengthens the time to conclusion of a case. A Defamation case shouldn't be different from any other case. The defendant should be able to deny liability and make a lodgement in the ordinary course. One problem has been highlighted where a plaintiff takes a defamation case, justification has been pleaded by and also a lodgement has been made. This puts the plaintiff in an unfair position where the plaintiff cannot show to the world that his name has been vindicated but rather it might appear the he has dropped his claim once justification has been pleaded. In order to get around this we would allow a plaintiff to make an application in open court to explain the circumstances, that the case has now been resolved by the plaintiff taking the lodgement.
Limitation of Defamation Actions
The report proposes a new general limitation period of one year. An added safeguard would be that the court could extend this in exceptional cases where a case has made out that the interest of justice would so require.
These last 2 recommendations it appears to the Legal Advisory Group would make a dramatic improvement leading to a more efficient and less costly system. The 1-year limitation period would bring it in line with proposals in personal injury type claims where the length of time is going to be shortened.
Declaratory Judgment
The group looked at what happened in the UK and decided to put in the report to allow a case to be fast-tracked. A plaintiff could apply under new rules for summary relief in the form of a declaratory judgment or a correction order, but not damages. There are many situations where people in public life would be more concerned about getting a retraction or an apology published rather than damages and this affords them the opportunity. At the moment the only remedy is damages, now a plaintiff can look for a correction order declaring that the matter published is false.
The report also set about the recoding of defence of justification to defence of truth and fair comment becomes the defence of honest opinion and that they would be set out in the bill and given clearer meaning.
The report included a new defence of Innocent Publication. The key words here are 'reasonable care'.
They suggest the abolition of the common law defences of blasphemous libel, obscene libel and seditious libel and they suggest the defence of criminal libel be replaced with the offence of publication of gravely harmful statements to provide a remedy for malicious attacks on the internet and such like. They have also included proposals for a single publication rule.
Press Council
Mr Mohan spoke briefly on the Press Council. He said it was not quid pro quo and that the idea behind it was that the press should have some standards and act in a reasonably ethical manner. A person who has an honest complaint should be able to have a fair hearing. On the issue of statutory or not the group went for statutory because it could enforce it's decisions. If the only issue here is Government appointment of member this could possible be changed.
Finally Mr Mohan stated that the group is not trying to hard sell the report, there are many complex issues involved here, he said it was an honest endeavour by the group and we will now wait and see where we go from here.