THE LAW Recent cases - Village Magazine

Garda ordered to disclose

identity of deceased suspect

historical abuse case

Rndll v Commissioner of An Grd Síochn

[2024] IEHC 540 (High Cour, Kennedy J, 10

Sepember 2024)

High Court orders the disclosure of the identity

of a deceased suspect from a Garda

investigation into historical sexual abuse

allegations made by the plaintiﬀ, who was a

child at the time of the alleged abuse. The court

did not, however, ﬁnd it necessary to order the

release of the entire investigation ﬁle at this

stage. The plaintiﬀ had sought this information

to identify and seek redress against the person

who sexually assaulted him. The court

recognised the plaintiff's need for the

suspect's identity to pursue potential civil

proceedings but emphasised that the broader

request for the investigation ﬁle had not met

the threshold of necessity. The court left open

the possibility for the plaintiﬀ to make a further

application for additional information if

required after initiating proceedings.

...UNTO

ITSELF

Recent case law: Mark Tottenham

THE LAW...

POLITICS

Local authority not liable for

employee injuries in lorry

collision

Dvey v Sligo Couny Council [2023] IECA 39

(Cour of Appel, Ní Riferigh J, 23 Februry

2023)

Court of Appeal dismisses appeal from High

Court, and aﬃrms decision that a local authority

was not liable for the injuries sustained by an

employee when a lorry collided with a convoy

of local authority workers. The Court determined

that the Council could not have reasonably

foreseen the unique combination of

circumstances leading to the accident,

including a professional driver asleep at the

wheel, the vehicle's cruise control set above the

speed limit, and the weight of the lorry. The

Court concluded that the local authority's duty

of care did not extend to such an unusual and

remote possibility, and therefore, its alleged

failures did not legally cause the plaintiﬀ's

injuries.

Mandatory retirement at

70 afﬁrmed for consultant

psychiatrist

Hollnd v Helh Service Execuive [2024] IEHC

533 (High Cour, Bolger J, 30 Augus 2024)

High Court dismissed the claims of a consultant

psychiatrist who sought damages equivalent

to 18 months' salary beyond the mandatory

retirement age of 70, as well as inclusion in the

Health Service Executive's (HSE)

superannuation pension scheme. The court

found no basis for the applicant's entitlement

to salary continuation past the statutory

retirement age, which he did not challenge.

Additionally, the court rejected the applicant's

claim to the HSE pension scheme, noting he

had declined multiple oﬀers to join the scheme

and was out of time to challenge his non-

membership. The court also determined that

the applicant's statutory claims related to ﬁxed-

term employment were not amenable to judicial

review and should have been addressed

through the Workplace Relations Commission.

Murder conviction upheld

despite debate over mental

disorder and intoxication

impact

DPP v Wrd [2024] IECA 227 (Cour of Appel, Ní

Riferigh J, 27 June 2024)

Court of Appeal upholds the murder conviction

of an individual who fatally stabbed his spouse,

rejecting the appeal against the conviction on

multiple grounds. The appellant had accepted

responsibility for the stabbing but claimed

diminished responsibility due to a mental

disorder exacerbated by intoxication. The court

found that expert testimony on the interaction

between the appellant's mental disorder and

intoxication was permissible and appropriately

considered by the jury. The original decision by

the trial court was aﬃrmed, with the Court of

Appeal concluding that the trial judge did not

err in his rulings on the admissibility of evidence

and the scope of cross-examination, nor in his

instructions to the jury regarding intoxication

and intent.

Identiﬁcation from CCTV and

ear defect is upheld in ﬁrearms

possession case

Direcor of Public Prosecuions v Shrlo

[2024] IECA 222 (Cour of Appel, Kennedy J, 29

July 2024)

Court of Appeal dismisses an appeal against a

conviction for possession of ﬁrearms and

ammunition, aﬃrming the original decision of

the trial court. The appellant challenged the

fairness of using a custody photograph and a

Garda commentary on CCTV footage to identif y

a distinctive ear defect. The court found that the

evidence was admissible and the trial process

fair, with the jury entitled to assess the

circumstantial evidence, including the CCTV

footage and the appellant's DNA on items

found at the crime scene. The appeal was

dismissed on the grounds that the identiﬁcation

process and the Garda commentary did not

prejudice the jury to an extent requiring a

discharge.

October-November 2024 37

VillageOctNov24.indb 37 03/10/2024 14:27

38 October-November 2024

Mandatory life sentence for

murder unconstitutional when

applied to juvenile accused

tried after turning 18

Musueni v Irelnd [2024] IEHC 523 (High Cour,

Simons J, 2 Sepember 2024)

High Court, by way of judicial review,

determines that a mandatory life sentence

would be unconstitutional in respect of

persons accused of murder when they were

minors, but who would be over eighteen by the

time of their trial, on the grounds that the

distinction based on the oﬀ ender's age at

sentencing, rather than at the time of the

oﬀ ence, was arbitrary and not justiﬁ ed by a

legitimate legislative purpose. This decision

aﬃ rmed the principle that moral culpability is

not altered by the oﬀ ender's age at the time of

trial and meant that the sentencing regime

violated the equality guarantee under Article

40.1 of the Constitution of Ireland.

No evidence of irreparable

harm if applicants for

international protection were

accommodated in hotel

McGrel v Miniser for Housing [2024] IEHC 520

(High Cour, Hollnd J, 31 July 2024)

High Court refused an application for an

interim injunction restraining the Minister for

Housing from using a hotel to accommodate

applicants for international protection, on the

grounds, inter alia, that: (a) the applicant did

not have a direct connection with the area

where the hotel was situated; (b) the case was

not statable in law; (c) the matter was not

sufficiently urgent to justify an ex parte

application; and (d) the balance of justice

favoured the accommodation of the relevant

persons where there was no evidence of

irreparable harm to the community.

Two-month suspension

for vet was unduly severe

after operation on dog with

inadequate consent

McCrney v Veerinry Council of Irelnd

[2024] IEHC 411 (High Cour, O’Higgins J., 6

June 2024)

High Court, on appeal from a decision of the

Veterinary Council of Ireland, reduces the

suspension of a veterinarian from two months

to one month, on the grounds that: (a) the

decision to operate on a diﬀ erent leg to that

consented to by the owner amounted to

misconduct, and this had been admitted; but

(b) there had been no harm to the animal and

the veterinarian had a previously unblemished

record; and (c) given the abundance of

mitigating factors, the initial sanction had

been unduly severe.

Reports prepared by Decisis Law Reports (Decisis.ie). Writers of reports: Mark Tottenham BL; Amy Walsh BL; Lawrence Morris BL

Opinion: Bernard Barton

Defamation mispprehension

f enacted, Section 3 of the Defamation

Bill 2024 will represent a profound and

fundamental change in the law that

strikes at a core principle of the Irish

legal system, the right of the citizen to

choose the mode of trial by which the facts

of a case, whether civil or criminal, are

decided.

Although presented as a mere procedural

change to the way in which future cases in

defamation are to be tried in the High Court

through the simple expedient of dispensing

with jury trial, the achievement of this

objective comes at a high price, the abolition

of one of the oldest civil rights known to the

law which was enshrined in Magna Carta: the

right to trial by jury.

Higgins v The Irish Aviation Authority [2022]

swept away the factual and legal premise on

which the proposed abolition of juries rests

The role of jury trial in a

democracy

The concept of jury trial, whether in cases of

serious criminal oﬀ ences or civil wrongs, is the

keystone of the legal system the purpose of

which is to ensure impartiality in the decision-

making process. Confidence in the

administration of justice is achieved through

the involvement of the public as the tribunal of

fact in the case they have been randomly

chosen to try.

The doctrine of the separation of powers

between the three branches of government —

the legislature, the executive and the judiciary

— is a common feature of a truly democratic

State founded on the sovereignty of the

people.

VillageOctNov24.indb 38 03/10/2024 14:27

October-November 2024 39

The entitlement of the people to participate

in the administration of justice is no less

important than their right to participate in the

election of those who represent them whether

at local, national or international level.

In Ireland, as in other democratic states,

particularly those sharing the system of

Common Law, trial by jury is the vehicle through

which the people participate in the

administration of justice. It is in every respect

a quintessential expression of democracy

which protects the litigant from the risk of

judicial caprice; places in the hands of the

public that share in the administration of

justice which it deserves; and prevents the

encroachment of vested interests and more

powerful and wealthy citizens.

Tested throughout centuries, this mode of

trial has been found to act as the most eﬀ ective

bulwark against the erosion of civil liberties,

upon which the proposed abolition constitutes

a direct and dangerous assault.

Vindication of he fundmenl

righs nd oher civil righs of

he ciizen

It is repeatedly claimed by those advocating

abolition that the right to trial by jury in

defamation represents an illogical

anachronism which should be swept away in

circumstances where it is claimed all other civil

proceedings today are tried by judge alone, a

claim which is as factually incorrect as it is

legally wrong.

The fundamental rights of the citizen

particular to the individual are guaranteed by

the Constitution: speciﬁ cally the right to

liberty, the right to freedom of expression, the

right to a good name, the right to bodily

integrity, the right to the ownership of property

and the inviolability of the home. They are

among a panoply of other civil rights

recognised by law which may be vindicated

through trial by jury.

Indeed, apart from the restriction of the right

to jury trial brought about by the Courts Act

1988 in respect of damages claims for

accidentally caused personal injuries, all

actions brought in the High Court for civil

wrongs recognised by law at the time of

independence carry the right to trial by jury.

Abolition: creation of an irrational anomaly

If implemented, not only would the proposed

abolition strip the citizen of the legal right to

choose the mode of trial in a serious case of

defamation, it would also remove the public

from involvement in the administration of

justice in such cases. This would be profoundly

undemocratic. Moreover, abolition would

create an irrational anomaly whereby of all the

legal rights open to vindication by jury trial

only in defamation would the citizen be forced

to have the case decided by a judge sitting

alone.

Furthermore, Ireland would become an

outlier among Common Law countries, where

the right to jury trial in defamation cases is

available either as of right or on application,

where jury trial may be ordered by a court in

the interests of justice. It is available, for

example, in Canada, most states in Australia,

New Zealand and the USA (as of right) and the

UK, including Northern Ireland, (on

application).

Abolition nd he repor of 

review of he Defmion Ac

2009

The proposal to abolish the right to trial by jury

in serious cases of defamation is founded

upon the conclusions reached, and a

recommendation made, in a report of a review

of the law of defamation carried out by the

Department of Justice pursuant to the

provisions of the Defamation Act 2009.

The Government accepted its

recommendations and published the report in

March 2022. A number of arguments were

advanced in support of the decision to

recommend abolition, which may be

summarised as follows:

a. Reduction of likelihood of disproportionate

and unpredictable awards of damages.

Reduction in duration of hearings and of the

legal process.

Consequent reduction in court delays and

legal costs.

The seriousness of the consequences of

abolition for the administration of justice

calls for a thorough examination of these

claims, which do not withstand careful

scrutiny.

The suggestion by the Ministers, who

constantly repeat the narrative contained in

the report, and by the Department of Justice,

that there is a likelihood of a dispropor tionate

award of damages by juries in a defamation

cases is not borne out by an examination of

appeal decisions heard under the

Defamation Act 2009, indeed, the number

of successful appeals on the ground that the

award was disproportionate can be counted

on the ﬁ ngers of one hand, a fact which is

conveniently unrecognised.

Supreme Court decision in

Higgins v The Irish Aviation

Authority

So too is the decision of the Supreme Court in

Higgins v The Irish Aviation Authority, delivered

one month after the publication of the report.

This judgment marks a historic watershed in

defamation law the implications of which are

directly relevant to the grounds advanced in

support of abolition of jury trial.

The Court has not only reversed the previous

practice whereby it was not possible to give

guidance to a jury on damages by reference to

monetary values or previous awards in similar

cases but has also set out categories and

ranges of damages to be applied in future

defamation cases.

The signiﬁ cance of the decision is that it

sweeps away the factual and legal premise on

which the proposed abolition rests. The Court

identiﬁ ed the need for more speciﬁ c guidance

to be given by way of assistance to a court in

carrying out an assessment of damages. The

express purpose of this is to advance the

likelihood of an award which is fair, reasonable

and proportionate to the wrong or injury

suﬀ ered in the particular circumstances.

Consequently, the ﬁ rst claim advanced in

support of abolition, the reduction in the

likelihood of a disproportionate award of

damages, has been comprehensively dealt

The number of successful appeals on the

grounds that the award of damages was

disproportionate can be counted on the

ﬁ ngers of one hand. And there is a failure

to acknowledge that our experience with

personal injuries, and in defamation in

England, is that jury abolition generates

delays and costs

A defmer fces his peers

VillageOctNov24.indb 39 03/10/2024 14:27

40 October-November 2024

The review also took

account of decisions

in defamation cases

involving disproportionate

awards which had nothing

to do with the Defamation

Act 2009, but were

governed by the repealed

Defamation Act 1961

Bernrd Brton

29 days.

Nor is it generally appreciated that, for

reasons which have been explained in many

judgments of the Superior Courts, a jury verdict

in any case, criminal or civil, enjoys a degree of

respect on appeal almost approaching sanctity

which the judgment of a single judge does not

enjoy. Consequently, it is much more diﬃcult

to overturn the verdict of a jury than the

decision of a single judge, on appeal.

Claims and consequences of abolition of jury

trial in personal-injury cases

Following the abolition of the right to trial by

jury in personal-injury cases brought about by

the Courts Act 1988, the number of appeals

from judge-only decisions rose exponentially.

The relevance of this is that instead of the

length of the litigation process and legal costs

being reduced as a result of abolition, a claim

made then as now, the opposite occurred.

Indeed, not only did the number of appeals

increase, so too did awards of damages.

However, it is not necessary to go back to the

1990s or 2000s in search of evidence of what

is likely to happen in the event of abolition.

Similar claims were made before the

Defamation Act 2013 came into force in

England and Wales. But since then legal costs

per day in the London High Court have risen

higher than at any time, a fact well illustrated

by a number of recent high-proﬁle cases.

Conclusion

The right to jury trial, whether for serious

criminal oﬀences or civil wrongs, has stood the

test of time for centuries and has yet to be

surpassed as the surest means of protecting

our civil liberties.

Significantly, the guidelines and value

parameters set out by the Supreme Court in

Higgins have not only been applied, but are

also working: an assertion evidenced by the

recent decision of the Court of Appeal in Gordon

v The Irish Racehorse Trainers Association. The

Court there unanimously upheld the verdict

and damages award of the jury against which

the guidelines had been applied.

Ultimately, the question of retention or

abolition essentially boils down to which mode

of trial best represents democracy in the legal

system: trial by a jury of one’s peers or trial by

a single unelected oﬃce-holder.

Bernard Barton was a judge of the High Court

(2014–2021) and head of its Civil Juries Division

(2007-2011). While Head of that Division he

presided over several signiﬁcant high-proﬁle

and complex defamation actions.

with by the Supreme Court, and with it the issue

of the unpredictability of jury awards.

Henceforth, it will be possible to predict the

likely range of damages within which a case

will fall by reference to the parameter guidelines

on value set down by the Court in its judgment.

Court of Appeal’s Decision in

Higgins reversed

It is particularly signiﬁcant in the context of this

debate that in reaching its decision the

Supreme Court unanimously overturned the

judgment of the Court of Appeal in the same

case. The reversal is signiﬁcant because the

report of the review on which abolition rests

had emphasised the Court of Appeal decision

in Higgins as a recent example to illustrate the

risk of disproportionate awards.

Indeed, not only has the Court of Appeal

decision been reversed but it is evident from

the report that the review also considered and

took account of decisions in other defamation

cases involving disproportionate awards which

had nothing to do with a review of the

Defamation Act 2009, but rather were governed

by the Defamation Act 1961, an act long since

repealed.

It follows that the proposal to abolish the

right to trial by jury rests on a framework which

is not only factually and legally ﬂawed but has

also been superseded by a fundamental

development in the law which provides

appropriate and necessary guidance to a court

on the assessment of an award of damages in

future cases of defamation.

Recommendation of

Oirechs Join Commiee on

Jusice

In the exercise of the statutory powers

conferred upon it, the Oireachtas Joint

Committee on Justice scrutinised the Scheme

for a new Defamation Bill, published by the

Government in March 2023.

Having invited and heard submissions from all

interested parties and having considered the

judgment of the Supreme Court in Higgins, not

only did the Committee unanimously

recommend the retention of the right to trial by

jury in High Court defamation proceedings but

it also adopted a recommendation made

previously on the subject by the Law Reform

Commission that the ﬁnal word on damages

should be left to the trial judge.

Notwithstanding, and for reasons which

have never been explained, neither

recommendation was accepted by the

Government; nor have the responsible

Ministers engaged with the decision of the

Supreme Court in Higgins.

Reduction in delys nd legl

coss

Insofar as there were delays in having jury

trials in defamation cases heard, this had

nothing whatsoever to do with the fact that

the cases were jury actions but was due to

the lack of resources and failure to appoint a

suﬃcient number of judges to deal with the

enormous increase in court business over

the last two decades.

The recent welcome increase in the number

of judges appointed to the High Court has

signiﬁcantly reduced delays in court lists,

including the civil jury list, a development

that renders the claim of delay in defamation

hearings nugatory.

With regard to the claim that the length of

the litigation process and legal costs will be

reduced by abolition of jury trial, one of the

longest defamation trials in recent times was

a case tried by judge alone; the trial lasted

VillageOctNov24.indb 40 03/10/2024 14:27