The Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) is currently being debated in the Seanad (Senate). The system of giving a Bill various readings (BBC | wikipedia) refers to an ancient practice in the House of Commons by which a Bill would actually be read out, first when it was introduced (the first reading), again whilst it was being debated (the second reading), and finally in its form for enactment after amendment (the third reading). More recently, a further stage, a committee stage, is often interposed between second and third readings: if the second reading debates the general principles of a Bill, then the detailed section-by-section scrutiny will take place at committee stage. Bills are usually initiated in the Dáil (lower House), and then reviewed in the Seanad, but the Government has in the last few years demonstrated a tendency to introduce Bills in the Seanad first, often for the purposes of detailed consideration and debate before being sent to the Dáil. The reason for this system of various readings of Bills in both Houses of the Oireachtas (ie, the Parliament) is to allow Bills to be publicly scrutinized and debated, and the Defamation Bill is currently undergoing that process with a detailed committee stage in the Seanad in which Senator David Norris (Ind, representing the University of Dublin (Trinity College); pictured left; website | blog) has made several energetic interventions – in the process, he has made one excellent point and one wrong-headed one.

Section 11 of the Bill provides that companies can sue in defamation, even where they have suffered no financial loss:

The provisions of this Act apply to a body corporate as they apply to a natural person, and a body corporate may bring a defamation action under this Act in respect of a statement concerning it that it claims is defamatory whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statement.

The McLibel (amazon | imdb | wikipedia) case (eg Steel & Morris v McDonald’s Corporation [1999] EWCA Civ 1144 (31 March 1999); Steel & Morris v UK 68416/01 [2005] ECHR 103 (15 February 2005)) is a notorious example of a corporation suing in libel; s11 is intended to preserve that right; and Senator Norris rightly called it into question:

… it seems extraordinary to claim that a body corporate is the same as a natural person. I do not believe that for a minute. This defect is compounded by the provision that a body corporate may bring a defamation action under this Bill in respect of a statement concerning it that it claims is defamatory “whether or not it has incurred or is likely to incur financial loss as a result of the publication of that statementâ€?. If there is no financial hurt, one is left only with feelings. I contend, however, that corporate entities are not entitled to feelings. The ability to feel is a human attribute that does not attach to the collective in the same way. (186 Seanad Debates, col 301 (20 February 2007)).

As a consequence, the Minister agreed to look at the matter again:

I am concerned that leaving the Bill untouched in this regard would allow a large company to take an individual to court to prove slander or to use the legal process to punish or humiliate a person. I will, accordingly, take another look at it. (186 Seanad Debates, cols 302-303 (20 February 2007)).

This kind of thinking aloud and teasing through of the issues is precisely what second readings and committee stages are for, especially in the Seanad. Of course, the Minister agreeing to look at the matter again is not the same as changing his mind, but it is to be hoped that the deletion of this section will appear as an amendment at a later stage in the Seanad or perhaps when it goes to the Dáil.

Though he was entirely right about s11, Senator Norris was less sure-footed (though no less emphatic) when it came to the power of the Supreme Court to substitute its own assessment of damages on appeal. It may already have that power, but s12 is designed to confirm that it has, and to encourage it to use it. It provides:

(1) Upon the hearing of an appeal from a decision of the High Court in a defamation action, the Supreme Court may, in addition to any other order that it deems appropriate to make, substitute for any amount of damages awarded to the plaintiff by the High Court such amount as it considers appropriate.

(2) In this section ‘decision’ includes a judgment entered pursuant to the verdict of a jury.

The relatively recent example of the damages awarded to businessman Denis O’Brien illustrates the practical necessity of this section. He was originally awarded Ir£250,000 (c€317,000) by a jury in the High Court, but, on appeal, the Supreme Court set it aside as disproportionately high and sent the case back to the High Court for a retrial on the issue of damages only (see O’Brien v Mirror Group Newspapers [2000] IESC 70 (25th October, 2000)). In the course of his judgment, Chief Justice Keane commented (at para [42]) that the Supreme Court has never exercised the power to substitute for the sum awarded by the High Court such sum as the Supreme Court thinks appropriate, and Mrs Justice Denham (at paras [90] and [94]) left for another case the matter as to whether it would be open to the Supreme Court to substitute an award of damages. On the retrial, the High Court awarded Mr O’Brien record damages of €750,000, a near-trebling of the damages award which provoked a storm of controversy (the following day, the Irish Independent’s main front page story was headined: “Bizarre libel law trebles damages to O’Brien”; see also the Irish Times story). It would all have been so much simpler if the Supreme Court, having said that Ir£250,000 (c€317,000) was too much, had gone on to substitute its own, lower, assessment. It would have saved the costs not only of the retrial but now also of the inevitable appeal back to the Supreme Court.

Nevertheless, Senator Jim Walsh (FF) was concerned that the Supreme Court would somehow usurp the role of the jury (186 Seanad Debates, col 305 (20 February 2007)), and Senator Norris found it surprising that such a distinguished lawyer as the Minister would impugn the sanctity of the jury (186 Seanad Debates, col 306 (20 February 2007)) in this way:

I am struck by the common sense in the approach of Senator Jim Walsh. His instinct is correct. I am astonished by the inclusion of this provision, which seems to be perverse and illogical. However, there is no doubt it is what the media wanted and the Minister has given it to them. (186 Seanad Debates, col 305 (20 February 2007))

In Independent News and Media v Ireland 55120/00 [2005] ECHR 402 (16 June 2005), existing Irish law on this point, as exemplified in the O’Brien case, just about survived scrutiny in the European Court of Human Rights in Strasbourg on foot of Article 10 of the European Convention of Human Rights. But just because a provision is minimally compliant with the Convention does not mean it cannot be amended, especially if that amendment ensures an even greater degree of compliance. Nevertheless, in support of his argument against s12, Senator Norris threw in a red-herring about the Independent News and Media case:

… this is an attempt to second guess juries. The machinery we already have is adequate for addressing the situation so effectively outlined by the Minister. This was the Government’s position [in Strasbourg] (186 Seanad Debates, col 316 (20 February 2007)).

The Minister also appeared to give ground on this point, though only very slightly:

One solution would be if the power to make a decision was circumscribed so that the Supreme Court might, where it is of the view it would be unjust to remit the matter to the High Court, or where the parties consent, then it would deal with the question of damages. It has to deal with its own award of damages. Clearly, at some stage the cycle has to stop. …

There are two sides to this story. I will examine the matter again to see whether a precondition must be either the parties consenting to it or the party appealing the award. … Second, the Supreme Court may independently come to the view that it would be unjust to send a case back to the High Court, either because this was the second time it had been before the Supreme Court or because it was a grotesque award for a trivial matter and the view is that more money should not be wasted bringing it back to the High Court again. …

I will take a look at those two propositions but I cannot accept the general proposition that at some stage the Supreme Court is totally capable of saying an award is excessive but utterly incapable of saying what would be an appropriate award and doing something about it. (186 Seanad Debates, col 317 (20 February 2007))

It would be unfortunate if this concession were to go to far. After all, for the Supreme Court to interfere with an award, it would already have to have held that the award below was totally disproportionate. This is exceptional enough. To add a further hurdle risks inviting another O’Brien-like scenario. While, thefore, there may be some merit in amending s12(1) to require the Supreme Court to stop and think again before substituting its own award (for example, making the power exerciseable only “where the justice of the case so requires” or some such phrase), the Minister should be slow to add that it can do so only where the parties agree or on the second occasion a case comes to it. These qualifications might very well emerge as practice develops, but that should be for the Court itself to decide. The amended s12(1) would then provide:

(1) Upon the hearing of an appeal from a decision of the High Court in a defamation action, the Supreme Court may, where the justice of the case so requires, in addition to any other order that it deems appropriate to make, substitute for any amount of damages awarded to the plaintiff by the High Court such amount as it considers appropriate.

Update: The debates quoted above are now available here: html | pdf.