Judges ‘have a duty to give direction on libel damages’

JUDGES now have a ‘duty’ to give juries in libel cases clear directions about damages in order to avoid ‘wild’ verdicts in the future, a High Court judge has said.

Mr Justice Bernard Barton made the remarks during legal arguments in the absence of the jury that ultimately awarded €3,500 to former IRA member Nicky Kehoe against RTÉ last week, the smallest ever defamation payout in the State’s history.

Leading experts recently warned that the potential remains for unexpectedly high libel awards in the future – along with crippling legal costs – that could threaten freedom of expression.

Before jurors began deliberating last month, Judge Barton proposed an immediate change to the current court practice of judges never advising juries about how to calculate ‘actual amounts’ in libel actions, the Irish Daily Mail can reveal.

Ultimately, the jury in the Kehoe case got no such specific guidance.

Charging the jury on Thursday, February 22, the judge simply told them to use their common sense. However, he did remind them of RTÉ’s argument that Mr Kehoe should receive an award ‘as low as’ 1c due to his IRA past. The previous day, in the jury’s absence, Judge Barton told lawyers for both sides: ‘The judge has a duty now to give the jury clear directions... Nobody seems to want to be the first person to get in there and do something. We might as well grab the nettle now… once we go down this road, we’re possibly starting a practice.’

Judges are already allowed to advise juries on damages under the 2009 Defamation Act – but it has never been done before in practice.