Defamation Act 2009 s.23(1)(c) preserves jury trial right; offer to make amends does not remove it.

Neutral Citation: [2016] IEHC 245

THE HIGH COURT

[2014 No. 3892 P.]

BETWEEN

PADRAIG HIGGINS

PLAINTIFF

AND

THE IRISH AVIATION AUTHORITY

DEFENDANT

JUDGMENT of Mr. Justice Moriarty delivered on the l0th day of May, 2016

Introduction

1. The issue arising in this case is whether, pursuant to s. 23(1)(c) of the Defamation Act 2009 ("the 2009 Act"), the plaintiff is

entitled to have damages determined by a jury.

Background

2. The plaintiff sued the defendant for defamation on account of three emails sent by a member of the Irish Aviation Authority ("the

IAA'') in June and July 2013. The emails were sent to other officers within the IAA and a member of the Civil Aviation Authority in the

United Kingdom. The plaintiffs claim is limited to these three publications.

3. The plaintiff issued a plenary summons on 16th April, 2614, and a statement of claim was delivered on 1st July, 2014. On 25th May,

2015, the defendant made an unqualified offer to make amends in accordance with s. 22 of the 2009 Act, which was accepted by the

plaintiff by letter dated 22nd June, 2015.

4. Following the plaintiffs acceptance, the defendant specified details of its offer to make amends by letter dated 13th July, 2015. In

accordance with the terms of s. 22 of the 2009 Act, the defendant's offer to make amends comprised an offer of a sum of money to

the plaintiff together with draft wording by way of apology (and a proposal for the circulation of same) and an offer to pay the

plaintiffs legal costs to date, such costs to be taxed in default of agreement. However, the parties have been unable to reach an

agreement in relation to the terms of the offer to make amends.

5. The plaintiff therefore issued the within motion seeking directions pursuant to s. 23 of the 2009 Act on 29th October, 2015,

returnable for 10111 November, 2015. The motion was subsequently transferred to the non-jury list and was made returnable to this

court for hearing on 15111 March, 2016.

6. The plaintiff’s motion seeks directions, pursuant to s. 23 of the 2009 Act, to have a judge and jury hear the plaintiffs claim with a

view to assessing damages or compensation together with the adequacy of the measures already taken by the defendant to ensure

compliance with its offer to make amends.

The relevant statutory provisions

7. Section 22 of the 2009 Act provides:

"22.- (1) A person who has published a statement that is alleged to be defamatory of another person may make an offer

to make amends.

(2) An offer to make amends shall-

(a) be in writing,

(b) state that it is an offer to make amends for the purposes of this section, and

(c) state whether the offer is in respect of the entire of the statement or an offer (in this Act referred to as a "

qualified offer '') in respect of-

(i) part only of the statement, or

(ii) a particular defamatory meaning only.

(3) An offer to make amends shall not be made after the delivery of the defence in the defamation action concerned.

(4) An offer to make amends may be withdrawn before it is accepted and where such an offer is withdrawn a new offer

to make amends may be made.

(5) In this section "an offer to make amends "means an offer-

(a) to make a suitable correction of the statement concerned and a sufficient apology to the person to whom the

statement refers or is alleged to refer,

(b) to publish that correction and apology in such manner as is reasonable and practicable in the circumstances, and

(c) to pay to the person such sum in compensation or damages (if any), and such costs, as may be agreed by them or

as may be determined to be payable,

whether or not it is accompanied by any other offer to perform an act other than an act referred to in paragraph (a),

(b) or (c)."

8. Section 23(1) of the Defamation Act 2009 provides:

"23.- (1) If an offer to make amends under section 22 is accepted the following provisions shall apply:

(a) if the parties agree as to the measures that should be taken by the person who made the offer to ensure

compliance by him or her with the

terms of the offer, the High Court or, where a defamation action has already been brought, the court in which it was

brought may, upon the application of the person to whom the offer was made, direct the party who made the offer to

take those measures;

(b) if the parties do not so agree, the person who made the offer may, with the leave of the High Court or, where a

defamation action has already been brought, the court in which it was brought, make a correction and apology by

means of a statement before the court in such terms as may be approved by the court and give an undertaking as to

the manner of their publication;

(c) if the parties do not agree as to the damages or costs that should be paid by the person who made the offer, those

matters shall be determined by the High Court or, where a defamation action has already been brought, the court in

which it was brought, and the court shall for those purposes have all such powers as it would have if it were determining

damages or costs in a defamation action, and in making a determination under this paragraph it shall take into account

the adequacy of any measures already taken to ensure compliance with the terms of the offer by the person who made

the offer;

(d) no defamation action shall be brought or, if already brought, proceeded with against another person in respect of

the statement to which the offer to make amends applies unless the court considers that in all the circumstances of the

case it is just and proper to so do. "

9. "Court" is not defined in the 2009 Act, although its meaning is set out in the context of specific sections of the Act. Section 14, for

example, provides that the court may give a ruling as to whether the statement in respect of which the action was brought was

reasonably capable of bearing the imputation pleaded by the plaintiff and as to whether that imputation is reasonably capable of

bearing a defamatory meaning. Section 14(3) goes on to provide that: "An application under this section shall be brought by notice of

motion and shall be determined, in the case of a defamation action brought in the High Court, in the absence of the jury."

10. In this case, the plaintiff submitted that in the context of s. 23(1)(c) the reference to "the High Court" and "the court" means the

jury, if the High Court is sitting with a jury. The defendant, however, has submitted that the section refers to a judge sitting alone.

Submissions on behalf of the plaintiff

11. The plaintiff submitted that there has been no determination to date as to whether a plaintiff has a right to a jury trial in order to

have damages assessed under s. 23 of the 2009 Act. In Christie v. TV3 [2015] IEHC 694, O'Malley J. sat alone in a defamation action

and assessed the plaintiff's damages in circumstances where there was no agreement as to the amount of damages payable following

an offer to make amends. In that case, the plaintiff, as was his entitlement, elected to have the matter heard by a judge sitting

alone.

12. The plaintiff submitted that the matters to be determined by the High Court, on foot of the directions sought from this court, are

the assessment of damages and the payment of costs pursuant to s. 23(1)(c).

13. The plaintiff made reference to s. 31 of the 2009 Act, which provides:

"31.- (I) The parties in a defamation action may make submissions to the court in relation to the matter of damages.

(2) In a defamation action brought in the High Court, the judge shall give directions to the jury in relation to the matter

of damages.

[...}

(8) In this section 'court' means, in relation to a defamation action brought in the High Court, the jury, if the High Court

is sitting with a jury. "

14. The plaintiff also made reference to the long-standing rule that "the assessment of damages is peculiarly the province of the jury

in an action for libel", as was stated in Davis v. Shepstone (1886) 11 App. Cas. 187. The plaintiff submitted that this rule was

confirmed by Hamilton CJ in de Rossa v. Independent Newspapers plc. [1999] 4 I.R. 432, where the learned judge noted that the

assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not in any

way altered by the provisions of the Courts Act 1988, which provided that certain actions, including claims for damages for personal

injuries, should not be tried by a jury.

15. In Hill v. Cork Examiner Publications Ltd [2001] 4 I.R. 219, Murphy J. held at p. 227:

"A special status attaches to an award for damages for defamation as determined by a jury. It was held in de Rossa v.

Independent Newspapers plc. [1999} 4 JR. 432, when considering Barrett v. Independent Newspapers Ltd. [1986] JR. 13,

that the assessment by a jwy of damages in a defamation action had an unusual and emphatic sanctity and an appellate

court should be slow to interfere with such an assessment. "

16. The plaintiff submitted that the change in the law brought about by s. 31 of the 2009 Act, allowing submissions to be made to a

jury in relation to the matter of damages, does not alter the fact that the assessment of damages in a defamation action in the High

Court remains a matter for the jury. The plaintiff stated that it is expressed to be so.

17. The plaintiff further submitted that he is entitled to seek aggravated damages from the court as provided for by s. 32 of the 2009

Act, and s. 32(3) again provides that "court" means, in relation to a defamation action brought in the High Court, the jury, if the High

Court is sitting with a jury.

18. The plaintiff stated that separately, the determination of the issue of costs is and always has been entirely a matter for the

judge.

19. The plaintiff submitted that s. 23 of the 2009 Act must be considered in light of his entitlement to a trial by jury. In DF (suing by

his next friend K McE) v. The Commissioner of An Garda Siochana [2015] IESC 44, Charleton J. noted that under Article 38.5 of the

Constitution, the only right to trial by jury is in respect of non​ minor criminal offences, i.e. serious crimes. There is no guarantee under

the constitution of trial by jury in respect of any form of civil procedure. Any entitlement in that regard is entirely statutory. Charleton

J. held as follows at para. 17 of his judgment:

“Since the Act of 1877, the entitlement to jury trial was preserved through section 94 of the Courts of Justice Act 1924.

That entitlement, however, has since been severely curtailed: reduced to a very small category of actions in the High

Court through the Courts Act 1988. Section 1 of the Act of 1988 abolishes trial by jury for actions “claiming damages in

respect of personal injuries caused by negligence, nuisance or breach of duty”. Similarly excluded from trial by civil jury

are claims under section 48 of the Civil Liability Act 1961 and actions arising from section 18 of the Air Navigation and

Transport Act 1936, as amended. Included in the abolition of civil jury trial are actions in which “damages are claimed

both in respect of personal injuries… and in respect of another matter” and damages claims “other than [for] personal

injuries”. Death is, for these statutory purposes, a personal injury which does not carry the entitlement to a civil jury

trial. Jury actions are not available, further, where the claim arises “directly or indirectly from an act or omission that

also resulted in personal injuries”. An unqualified summary of the reform would be that personal injury actions, which up

to 1988 were grist to the mill in legal practice before juries, were now to be tried by a judge alone. To this statutory

reform, however, there is a saver. Section 1(3) provides that the removal of the entitlement to civil jury trial is not to

apply to:

(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the

person or both,

(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the

person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for

another cause of action in respect of the same act or omission, unless it appears to the court … that, having regard to

the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false

imprisonment or intentional trespassed the person or both … in respect of that act or omission, or

(c) a question of fact or an issue arising in the action referred to in paragraph (a) or (b) of this subsection other than an

issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be

given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional

trespassed to the person or both, as the case may be, in respect of the actor omission concerned.”

20. Charleton J. held that once it is decided as a matter of law that s. 1(3) of the Courts Act 1988 applies, in other words that the

action is one which carried the entitlement of a jury trial, the action ceases to be one where, without the consent of the parties, a

trial by a judge alone can take place.

21. The plaintiff submitted that similarly the right to a trial by jury in a defamation action cannot take place by a judge alone without

the consent of the parties.

22. The plaintiff also referred to the decision of the Court of Appeal in Lennon v. Health Service Executive [2015] IECA 92, where

Hogan J., having analysed the relevant legislation and case law, held that the High Court had no jurisdiction to dilute the plaintiffs

right to trial by jury in respect of a defan1ation action.

23. The plaintiff submitted that the 2009 Act was enacted following an extensive consultative process over many years. The plaintiff

stated that it was noteworthy that in the Legal Advisory Group's report on the Tort of Defamation (2003), prepared on behalf of the

Minister for Justice, the Legal Advisory Group considered the offer of amends for unintentional defamation contained in the Civil

Liability Act 1961, and recommended that the provisions applying in the United Kingdom under the Defamation Act 1996 be used as a

model for further statutory intervention in this area.

The plaintiff stated that the Group also concluded that juries should continue to have a role in assessing damages in the High Court.

24. Counsel for the plaintiff submitted that this recommendation was substantially followed, and the provisions enacted under ss. 22

and 23 of the 2009 Act are very similar to those in the UK Defamation Act 1996, save that under s. 3(10) of the UK Act, it is

expressly provided that proceedings under that section shall be heard and determined without a jury. The plaintiff pointed out that

there is no equivalent provision in the 2009 Act.

25. The plaintiff submitted that if the Oireachtas had intended that the assessment of damages under s. 23 of the 2009 Act should be

heard without a jury, it would have created a statutory exception.

26. The plaintiff submitted that, moreover, s. 3 of the 2009 Act expressly provides that the Act shall not affect the operation of the

general law in relation to defamation except to the extent that it provides otherwise (either expressly or by necessary implication).

27. The plaintiff stated that it was not surprising that the Oireachtas chose not to follow the equivalent UK provisions and exclude

the dete1mination of damages following an offer to make amends from a jury. It was submitted that there is a fundamental divergence

between the two jurisdictions concerning jury trials in defamation actions. The sanctity of the role of juries in defamation actions in

this jurisdiction remains (see Barrett v. Independent Newspapers [1986] LR. 13), whereas under s. 11 of the UK Defamation Act 2013,

defamation cases are now heard by a judge sitting alone, unless the court otherwise requires.

28. For these reasons, the plaintiff submitted that s. 23 of the 2009 Act must be interpreted as entitling the plaintiff to have his

damages assessed by a jury.

Submissions on behalf of the defendant

29. The defendant submitted that the right of a trial by jury is not an absolute right, as was emphasised by Clark J. in Bradley and

ors. v. Maher [2009] IEHC 389. The defendant submitted that the plaintiff is not entitled to a jury, and nor is one required for the

assessment of damages. The defendant submitted that for the court to give a direction that there was such an entitlement would be

contrary to the offer to make amends process under s. 22 of the 2009 Act. The defendant further submitted that such a direction is

unnecessary, would have enormous costs implications for the parties, and would be an improper use of court time.

30. The defendant submitted that the adequacy of any measures taken by the defendant to ensure compliance with its offer to make

amends is a matter that the court may take into consideration in any award of damages made at the determination stage of the offer

to make amends process, and is therefore not a separate and distinct matter for directions.

31. The defendant submitted that if an offer to make amends is accepted, s. 23 of the 2009 Act takes effect, and states that if

accepted, the provisions as set out in the section shall apply.

32. The defendant referred to the work of Cox and McCullough, Defamation Law and Practice (Clarus Press, 2014), where it is noted

that if the parties agree on the precise measures to be taken in the fulfilment of an offer, then the party to whom the offer was made

can apply to the court for an order directing the person who made the offer to take such measures, as provided by s. 23(1)(a)

above. The defendant stated that, on the other hand, where the offer is accepted, but there is no agreement as to what must be

done in the fulfilment thereof, the focus turns to the person making the offer, who may, with the leave of the court in which the

action is being heard, make a correction and apology by means of a statement to the court, in such terms as may be approved by the

court, and may give an undertaking as to the manner of their publication, as per s. 23(1 )(b).

33. The defendant referred to the further statement of Cox and McCullough that while the court may, perhaps, have jurisdiction to

reject a proposed correction and apology, it seems clear that there is no question of either a plaintiff or the court imposing a

particular correction and apology, or manner of publication, on a defendant. The defendant submitted that the adequacy of any

apology or correction made or published is a matter which the court can take into consideration in any award of damages: s. 23(1)

(c), and Cox and McCullough at pp. 356-7.

34. The defendant submitted that following the acceptance of an offer to make amends, s. 23(l)(c) provides that where agreement

cannot be reached as to damages or costs between the parties, those matters shall be determined by the "High Court or, where a

defamation action has already been brought, the court in which it was brought. " The defendant submitted that the only logical

interpretation of the "High Court" and "court", means a judge alone and does not include a jury.

35. It was submitted that the legislative intent can only lead to the conclusion that a decision on damages following acceptance of

an offer to make amends, in the absence of agreement between the parties, is to be made by a judge alone and not a jury. Cox and

McCullough state that the "defence" of an offer to make amends in the 2009 Act, is about "facilitating the expeditious resolution of

actions, hopefully without involving the courts at all. " The defendant stated that to read into s. 23(1)(c) the involvement of a jury,

would do damage to the intention of the provision. It was submitted that in Law of Torts (Bloomsbury Professional, 2013) McMahon

and Binchy appear to operate on the presumption that s. 23(1)(c) operates in the absence of a jury.

36. The defendant submitted that there are other references in s. 23 itself to the "High Court", where the phrase cannot be taken to

refer to a jury. For example, subs. 1(a) provides that "the High Court", on application to it, may direct the party who made the offer

to take those measures. It was submitted that such an application could not possibly be made to a jury. Similarly, ins. 23(1)(b) the

leave of the "High Court" may be sought to make an apology by way of statement in court, such tem1s of apology being approved by

the court; it was submitted that this could not possibly be undertaken by a jury. The defendant stated that Cox and McCullough

suggest that to interpret s. 23(1)(c) as anything other than a judge sitting alone would "do violence to the construction of the

section. "

37. The defendant submitted that it is of particular relevance that the three provisions above are subsections of the one section and,

as such, it was submitted that they should be read in light of each other.

38. Counsel for the defendant stated that there are a number of instances in the 2009 Act generally where the term "the High Court",

used in isolation, cannot reasonably be construed as involving a jury and thus there is no reason why the use of the term ins. 23(1)

(c) must necessarily be taken to refer to a judge and jury.

39. The defendant submitted that the general scheme of the 2009 Act is to expressly state that a reference to "the court" is to be

taken to refer to a jury, where that is the intention. There was no reasonable conclusion as to why the legislature would not have

expressly included the jury in s. 23(1)(c) if that was in fact the intention. It is of particular significance that ss. 31 and 32, which

concern quantum of damages, expressly specify that reference to the court is deemed to refer to the jury, whereas s. 23(l)(c), which

also deals with quantum of damages, is silent on the issue of jury involvement.

40. It was submitted that the reference in s. 23(1)(c) to the following: "the court shall for those purposes have all such powers as it

would have if it were determining damages or costs in a defamation action", relates to the power of the court to order discovery and

hear submissions in order to consider the aggravating and mitigating factors. It does not in any way relate to the involvement of a

jury.

41. In reliance on the reasons set out above, given that there is no role for a jury in the consideration of damages or costs, the

defendant submitted that there is no role for a jury under s. 23(1)(c) in the consideration of the adequacy of measures taken to

ensure compliance with the terms of the offer made.

Decision of the court

42. The issue arising for the determination of the court in this case is whether in circumstances where an offer of amends had been

made and accepted pursuant to s. 22 of the 2009 Act, but the parties are unable to reach agreement as to the issue of quantum of

damages or costs, is there an entitlement under s. 23(l)(c) to a jury trial? The plaintiff has contended that the references to "the

High Court" and "the court" in s. 23(1)(c) mean a judge sitting with a jury, while the defendant has submitted that the section

contemplates a judge sitting alone. As such, this case comes down to a net point of statutory interpretation.

43. Various authorities and academic commentaries, as set out above, were opened to the court in both written and oral submissions.

However, it seems to me that the judgment of the Court of Appeal (Hogan J.) in Lennon v. Health Service Executive [2015] IECA 92 is

of central importance to the determination of the issue arising m this case. The question before the court in that case was whether in

circumstances where a plaintiff has simultaneously commenced both judicial review proceedings and an action for defan1ation

pursuant to the 2009 Act, can that plaintiff be deprived of the right to jury trial in respect of the defamation action by reason of a

case management decision made, for sound and practical reasons, in respect of the hearing of the two cases?

44. In determining this issue, Hogan J. traced the history of the right to a jury trial, citing, inter alia, the 11 Amendment of the US

Constitution (1791) which provides that "in suits at common law ... the right of trial by jury shall be preserved." The learned judge

noted, however, that the right to jury trial in respect of common law actions had been eroded by statute during the 19th and 20th

centuries. He concluded, at paras. 21-24 of his judgment:

"21. The net effect of these various statutory changes is that over 150 years the right to jury trial in civil matters has

been gradually whittled away. Yet it is equally plain that the right to jury trial in respect of defamation actions in the

High Court which existed immediately prior to the [Supreme Court of Judicature Act (Ireland) 1877] has not been altered

by subsequent statutory changes. That right was preserved by s. 48 of the 1877 Act and, save for the abolition of the

right to jury trial in the Circuit Court by s. 6 of the [Courts Act 1971], that right has never otherwise been altered or

diluted by the Oireachtas.

22. Indeed, it is clear, moreover, from the terms of the 2009 Act that the Oireachtas assumed that all defamation

actions would be tried in the High Court with a jury. Thus, for example, s. 14(1) of 2009 Act empowers the court in a

defamation action to give a direction as to whether the statement in question is 'reasonably capable' of bearing the

imputation asserted by the plaintiff Assuming the answer to that question is in the affirmative, then the court is required

to determine whether 'that imputation is reasonably capable of bearing a defamatory meaning'. What is significant for

present purposes is that s. 14(3) of the 2009 Act provides:-

'An application under this section shall be brought by notice of motion and shall be determined, in the case of a

defamation action brought in the High Court, in the absence of the jury. '

23. It is plain, therefore, that the Oireachtas assumed that all defamation actions heard in the High Court would be tried

by a jury.

24. Against that background, therefore, the question is whether a right to jury trial in defamation proceedings which was

preserved by s. 48 of the 1877 Act and a series of other enactments can be compromised or set aside by a case

management direction. It is true that there are two High Court decisions, Bradley v. Maher [2009} JE.H C. 389 and

Kerwick v. Sunday Newspapers Ltd., High Court, 10th July 2009 which suggest that this question should be answered in

the affirmative. "

45. Hogan J. then turned to consider those authorities. In Kerwick v. Sunday Newpapers Ltd. (High Court, 1oth July, 2009) the

plaintiff had brought proceedings for defamation, a breach of her constitutional right to privacy and negligent infliction of emotional

distress. Dunne J. held that notwithstanding the fact that, in the ordinary way, the defamation claim brought by the plaintiff would

have been tried by a jury, in the circumstances of the case before the court, the interests of justice required that there be a single

trial of all the issues, and that such trial could not be before a jury.

46. In Bradley v. Maher [2009] IEHC 389, Clarke J. took a similar view. He ruled that it was in the interests of justice that the entire

action, which involved unlawful picketing and defamation, be tried by a judge sitting alone. The learned judge held that in the ordinary

way, a plaintiff was entitled to a jury trial in defamation proceedings; however, that entitlement was not absolute. Where a single set

of proceedings involved more than one cause of action, the court had to exercise a discretion as to the appropriate way in which all

issues in the case could be disposed of.

47. Hogan J. observed that the court in those cases proceeded from the premise that the right to jury trial in defamation proceedings

was not something to which the party was entitled to as of right, and that any such pre-existing right should yield to the demands of

case management and the efficient administration of justice. However, Hogan J. did not accept that the High Court enjoyed any such

jurisdiction. He held as follows at para. 30 of his judgment:

"30. As we have seen, any party to defamation proceedings had the unquestioned right at common law to opt for jury

trial. That right pre-existed the enactment of the 1877 Act and, as we have seen, was expressly preserved by s. 48 of

that Act. Section 48 of the 1877 Act further provided that such right could be enforced by the High Court by motion.

That statutory right has never been diluted in any way by any subsequent legislation (save for the abolition of the right

to jury trial in the Circuit Court by s. 6 of the I 971 Act) and nor has the Oireachtas created any discretionary

exceptions to that right. Indeed, as we have seen, s. 14 of the 2009 Act provided that in defamation proceedings certain

preliminary matters (such as whether the publication was capable of having a defamatory meaning) should be

determined by a judge alone. The Oireachtas has not elected to set out any further circumstances in which a

defamation action in the High Court (or any feature thereof) could be tried otherwise than by a jury. "

48. Hogan J. thus held that Kerwick and Bradley were wrongly decided, and stated, at para. 41 of his judgment, that the High Court

had no jurisdiction to dilute the plaintiffs right to trial by jury in respect of the defamation action. The learned judge held that the

plaintiff was entitled, by virtue of these statutory provisions, to jury trial as of right and that that entitlement, where applicable,

could not be abrogated by a judicial order under any circumstances, even if the step was taken for the most understandable reasons

of efficiency and case management. It is scarcely necessary to state that Dunne J. and Clarke J. were members of the High Court at

the time of the decisions aforesaid.

49. The defendant submitted that the decision of the Court of Appeal in Lennon does not address the offer of amends procedure

under s. 23 of the 2009 Act which, it was submitted, is a totally separate regime. The defendant reiterated the views of academic

commentators, including Cox and McCullough, and McMahon and Binchy, that there is no right to jury trial under s. 23.

50. While it is true that the academic works opened to the court favour the view that there is no right to a jury trial under s. 23, it is

important to note that those commentaries predate the decision of the Court of Appeal in Lennon, a decision binding upon me.

51. As Hogan J. pointed out, it is clear in light of s. 14(3) that the Oireachtas assumed that all defamation actions heard in the High

Court would be tried by a jury. That is the starting point for any consideration of this issue. It seems to me therefore that if the

Oireachtas had intended to remove or dilute the right to jury trial ins. 23, it would have done so expressly. Instead, while the 2009

Act is closely modelled on the United Kingdom Defamation Act 1996, which expressly provides in s. 3(10) that the offer to make

amends procedure is to be operated in the absence of a jury, no equivalent provision was included in the 2009 Act; it simply states

that matters such as damages "shall be determined by the High Court. " This, it seems to me, confirms that the legislature did not

intend to remove the right to jury trial in the context of s. 23. The court must assume that the framing of the sub-section as enacted

was purposeful. Further, the rarely invoked but still operative rule of construction "inclusio unius est exclusio alterius" appears in point.

52. Accordingly, in light of the judgment of the Court of Appeal in Lennon, and in the absence of an express intention on the part of

the legislature to abrogate the right to jury trial in s. 23(1)(c), I am satisfied that the plaintiff is entitled pursuant to that section to

have his damages assessed by a jury, rather than by a judge sitting alone, should he wish to do so.