It is widely reported this morning that the Government has approved the publication of the long-awaited, much-delayed, and eagerly-anticipated Defamation (Amendment) Bill 2024 (see, eg, Catherine Sanz, Business Post | Cianan Brennan, Irish Examiner | Shane Phelan, Irish Independent | Brynmor Pattison, Irish Sun | Cormac McQuinn, Irish Times (here and here) | Orla O’Donnell, RTÉ | Steven Fox, TheJournal.ie).

It will deal with issues such as the abolition of juries, the control of strategic litigation against public participation (SLAPPs), live broadcasts, transient retail defamation, support for alternative resolution of defamation disputes, identifiability of anonymous online defamers, the prominence of corrections, and improvement of the defence of reasonable publication. A Government press release explains that

Minister for Justice Helen McEntee TD and Minister of State for Law Reform James Browne TD have received Government approval to publish the Defamation (Amendment) Bill 2024. The full text of the Bill will be published on the website of the Houses of the Oireachtas next week. …

Minister McEntee said:

Our democracy needs defamation laws that meet the challenges of an increasingly complex media landscape. The overarching aim of this Bill is to safeguard freedom of expression, the right to protection of good name and reputation, and the right of access to justice. …

No doubt, once the Bill is published by the Department of Justice (headquarters pictured above left), I will have much to say on these issues, on this blog and elsewhere. Right now, I’d like to add one further suggestion to the mix. Many of the evils which the forthcoming Amendment Bill will address – such as inconsistent, disproportionate and unpredictable damages, costs, delays, procedural complexity, length of hearings, SLAPPs – stem from the fact that many defamation cases are commenced in the High Court. If defamation cases were instead to be routinely commenced in the Circuit Court, then, at a stroke, many if not most of the problems with Ireland’s current defamation regime would simply disappear. Of course, once commenced in the Circuit Court, it should be possible to transfer the case to the High Court in exceptional cases where the interests of justice require it.

There is no practical reason why this could not be done. Defamation cases can already be heard in the Circuit Court – for example, Kitty Holland took her recent high-profile and successful defamation action against John Waters in the Circuit Court. Moreover, certain matters are already confined to that court: for example, a plaintiff may, pursuant to section 28 (also here) of the 2009 Act, apply to the Circuit Court for a Declaratory Order that a statement is false and defamatory. Furthermore, the forthcoming Amendment Bill will permit applications relating to the identifiability of anonymous online defamers to be taken in the Circuit Court. So there can be no objection in principle to this suggestion.

The starting point would be to amend the Defamation Act 2009 (also here), perhaps along the following lines:

00. Jurisdiction of Courts
(1) The Act of 2009 is amended by substituting the following section for section 41:

“(1) A defamation action pursuant to this Act shall be commenced in the Circuit Court.

(2) The Judge of the Circuit Court by whom jurisdiction pursuant to subsection (1) is to be exercised shall, at the election of the plaintiff, be-

(a) the Judge of the Circuit where the tort is alleged to have been committed, or
(b) the Judge of the Circuit where the defendant or one of the defendants resides or carries on business.

(3) A party to a defamation action commenced in the Circuit Court pursuant to this section may apply to the court for an order transferring the action to the High Court.

(4) An application pursuant to subsection (3) shall be brought by notice of motion.

(5) An application pursuant to subsection (3) may be brought at any time after the commencement of the defamation action concerned including during the course of the trial of the action.

(6) The court shall not make an order pursuant to subsection (3) unless it is satisfied that-

(a) the interests of justice require the making of the order, and
(b) the prejudice that the party seeking the order would suffer if the order were not made would significantly outweigh the prejudice that the other party would suffer if the order were made.

(7) Where an action is transferred to the High Court pursuant to subsection (3), the High Court shall be deemed to have made any order of a procedural nature that was made by the court from which it was transferred.

(8) This section does not apply in relation to any action in being at the commencement of this section; but this section does apply in relation to a retrial of any such action if the retrial begins after such commencement.”

(2) The Act of 2009 is amended by substituting the following section for section 13:

“(1) Any final decision in a defamation action pursuant to this Act, whether in the Circuit Court or the High Court, may be appealed to the Court of Appeal.

(2) Upon the hearing of an appeal pursuant to subsection (1), the Court of Appeal may, in addition to any other order that it deems appropriate to make, substitute for any amount of damages awarded to the plaintiff such amount as it considers appropriate.

(3) Upon the hearing of an appeal from a decision of the Court of Appeal taken pursuant to subsection (2), 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 such amount as it considers appropriate.”

(3) The Act of 2009 is amended–

(a) in section 8(11), by deleting paragraph (a);
(b) in section 10(11)(a), by substituting “transferred to” for “brought in”;
(c) in section 14(3), by deleting ” and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury”;
(d) in section 23, by deleting the word “High” wherever appearing;
(e) in section 26(4), by deleting “” court” means, in relation to a defamation action brought in the High Court, the jury, if the High Court is sitting with a jury;”;
(f) in section 28(1), by deleting the word “Circuit”;
(g) in section 28, by deleting subsection (9);
(h) in section 30(4), by deleting “or, where the action is tried in the High Court sitting with a jury, the trial judge”;
(i) in section 30, by deleting subsection (2);
(j) in section 30(4)(k), by deleting ” or, where the action is tried by the High Court sitting with a jury, would propose to make in the event of there being a finding of defamation”;
(k) in section 31, by deleting subsection (8); and
(l) in section 33(1), by deleting the word “High”.

This starting point would then need to be amended in two ways. First, there are, no doubt, many ways in which it could be corrected or improved (so, if you see any, please let me know). Second, the proposed draft section will have to be revisited to take account of the Amendment Bill when it is published next week. It is being reported that the Government is working on amendments to be brought forward at Committee stage in the Oireachtas; and the press release explained that “further key reforms are being finalised, which Minister McEntee will bring as Government amendments during the Bill’s passage through the Oireachtas”. So there is space for further amendments to the Bill, and there is still time to amend it along the lines suggested here.