THE COURT OF APPEAL
Neutral Citation Number:  IECA 92
No. 2015/50 Exp
HEALTH SERVICE EXECUTIVE
DEFENDANT/RESPONDENTJUDGMENT of Mr. Justice Gerard Hogan delivered on the 30th of April 2015
1. Where a plaintiff has simultaneously commenced both judicial review proceedings and an action for defamation pursuant to the Defamation Act 2009 (“the 2009 Act”), may that plaintiff be deprived of his right to jury trial in respect of the defamation action by reason of a case management direction made, admittedly for sound and practical reasons, in respect of the hearing of the two cases? This is essentially the issue which we are required to determine in the present appeal and it arises in the following way.
2. The plaintiff is a national school teacher. In 2004 he was placed on administrative leave following the making of a complaint by the parents of a pupil to the effect that their son had been sexually abused. Other serious complaints of a similar nature followed. The plaintiff then commenced judicial review proceedings (2004 No. 1160JR) (“the 2004 proceedings”) seek to quash a decision of the HSE (or, more accurately, its statutory predecessor, the Midwestern Health Board) made on 20th July 2004 which had apparently validated on a prima facie basis the complaints and which decision had been made in circumstances where he had not been heard.
3. An order was made by consent on 16th June 2005 quashing this decision which had been taken at a child protection conference. The HSE then indicated that it would commence a fresh investigation. The plaintiff then brought a second set of judicial review proceedings (2006 No. 593 JR) (“the 2006 proceedings”). The 2006 proceedings were compromised and by consent the proceedings were struck out by the High Court on 11th December 2006. The effect of this consent order was that the HSE assured the plaintiff that all relevant documentation bearing on the investigation had been furnished to him.
4. Three separate criminal prosecutions followed arising out of these complaints. The plaintiff was, however, acquitted of all charges following three separate criminal trials on 13th May 2009, 7th July 2009 and 15th October 2010. Following these acquittals, the plaintiff then sought to be reinstated to his teaching post. The HSE made clear, however, that it intended to continue its investigation.
5. That investigation concluded with a letter sent by the senior social worker in charge of the investigation, Mr. Bill Hamill, on 14th December 2012 to the Board of Management of the school in question. In that letter Mr. Hamill briefly outlined the history of the matter, including the fact that the HSE had previously deemed the complaints to be credible. Mr. Hamill then referred to the fact that the plaintiff had been acquitted following criminal prosecutions. He then stated:
7. On 7th November 2013 the plaintiff then issued proceedings claiming damages for defamation under s. 29 of the 2009 Act. He also sought a correction order under s. 30 of the 2009 Act. The gist of the defamation proceedings is to the effect that the plaintiff alleges that on various dates between 14th December 2012 and 25th June 2013 Mr. Hamill conversed with the parents of children attending the school and that in these conversations Mr. Hamill said or implied that the plaintiff was a threat to children attending the school and that he should not have been permitted to return work.
8. On 27th January 2014 the High Court made an order by consent amending the 2013 proceedings. The additional relief and grounds thus added to those judicial review proceedings was to the effect that the HSE had acted ultra vires insofar as Mr. Hamill had communicated with the parents and had suggested that the plaintiff should not be allowed to resume his teaching duties. It is clear that there is a considerable overlap between the two sets of the proceedings.
9. On 24th November 2014 the respondent applied by motion to the High Court for an order consolidating the 2013 proceedings with the defamation proceedings and for general case management directions as to the mode of trial. In a ruling delivered on 15 January 2015 McCarthy J. held that the 2013 proceedings be listed together with the defamation proceedings, ruling that it was a matter for the trial judge whether to hear the cases together or successively. In the course of that ruling McCarthy J. said as follows:
One can see, in other words, that there are sound reasons why a discretion is vested in the courts to direct cause of actions or proceedings to be heard even at the price, so to speak, of the exclusion of an entitlement to trial by jury.”
12. The existence of these and other similar practical difficulties were not really at issue in this appeal. The only real issue before the Court was whether the plaintiff’s right to jury trial in respect of the defamation action could properly be set aside on this account for reasons of efficient case management. It is, accordingly, first necessary to examine the nature of a party’s right to jury trial in defamation proceedings.
The right to jury trial in civil matters
14. The procedural fusion of the chancery and the common law courts into one High Court which was effected by the Supreme Court of Judicature (Ireland) Act 1877 (“the 1877 Act”) also weakened in practice the pre-eminent role which juries had previously enjoyed in common law actions. This was in part because there was now one unified High Court whose jurisdiction was governed by statute, but also because there was now effectively for the first time a procedure where common law and equitable claims could be combined in one set of proceedings which could be adjudicated by a judge sitting alone. Save in rare and special cases, there was in practice no entitlement to jury trial in the Courts of Chancery prior to the 1877 Act. Even then, however, s 48 of the 1877 Act provided that:
16. The right to jury trial in civil matters was further eroded following independence as a consequence of s. 94 of the Courts of Justice Act 1924 (“the 1924 Act”) which provided:
18. The effect of s. 94 of the 1924 Act was in practice to remove the right to jury trial in actions for breach of contract, while otherwise preserving the right to jury trial which had in turn been previously preserved by the 1877 Act. As Clarke J. said in Bradley v. Maher  IEHC 389. there is “no doubt but that a right to trial by jury in defamation proceedings existed as of that time and was, therefore, continued in force by reason of that Act.”
19. Two other important statutory changes from the 1970s and the 1980s respectively are also relevant to this question. First, s. 6 of the Courts Act 1971 (“the 1971 Act”) abolished the right to jury trial in all civil actions in the Circuit Court. This led to the situation for the first time where the Circuit Court heard defamation actions by a judge sitting alone. Second, s. 1 of the Courts Act 1988 abolished the right to jury trial in respect of personal injuries matters, save for claims for trespass to the person and false imprisonment.
20. The law in this matter as it stood immediately prior to the 1988 Act was thus helpfully summed up by McWilliam J. in McDonald v. Galvin [1976-1977] I.L.R.M. 41, 43:
22. Indeed, it is clear, moreover, from the terms of 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” 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:-
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  IEHC 389 and Kerwick v. Sunday Newspapers Ltd., High Court, 10th July 2009 which suggest that this question should be answered in the affirmative. We may now examine these decisions in turn.
The decisions in Kerwick v. Sunday Newspapers and Bradley v. Maher
29. Nevertheless, where I respectfully differ from the approach taken by the High Court in Kerwick and Bradley and in the present case is that in each of these three cases, the court 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 operation of the administration of justice. With respect, however, I do not believe that the High Court enjoys any such jurisdiction.
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 1971 Act) and nor has the Oireachtas created any discretionary exceptions to that right. Indeed, as we have seen, s. 14 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.
31. Indeed so far as cases such as Bradley are concerned, it may be observed that, prior to the 1877 Act, the plaintiff would have had no entitlement to combine a claim for an equitable remedy such as an injunction with the quintessentially common law claim in defamation in one set of proceedings. Although the 1877 Act permitted this to be done, s. 48 expressly preserved the right to jury trial at common law which had heretofore existed. It follows that the plaintiff’s right to bring hybrid common law and equitable claims in a single set of proceedings - which by now is so common and standard that we have almost forgotten that it was not possible prior to the enactment of the 1877 Act - nevertheless derives from that 1877 Act. Yet, as we have seen, s. 48 of the 1877 Act expressly provided that “nothing in this Act” should be taken as compromising any party’s pre-existing right to jury trial. It follows, therefore, that a plaintiff’s right to combine a claim for defamation and an injunction in single proceedings (which was permitted by the 1877 Act) could not prejudice a defendant’s entitlement to opt for jury trial in respect of the defamation claim by reason of s. 48 of that self same Act.
32. In these circumstances, the High Court simply has no jurisdiction to create what in effect would amount to a discretionary exception to this common law right which has been copper-fastened by legislation, even if this was done for the very understandable reasons of efficiency and case management. Insofar as the decisions in Kerwick and Bradley suggest otherwise, I believe that, with respect, they were wrongly decided and should not be followed.
33. In any event, quite apart from the issue of principle, I consider that this conclusion is supported by other authority: see Delany, The Courts Acts 1924-1997 (Dublin, 2000) at 59-60. We may commence with a pre-1924 Act authority, Magill v. Magill  2 I.R. 55. This was a case where the plaintiff had sued for damages for breach of contract and the High Court had directed that the case be heard without a jury. While the case is somewhat inadequately reported, the headnote to the Irish Reports records the (former) Court of Appeal as having held that, in the absence of consent, the High Court had no jurisdiction to make such an order.
34. In McDonald v. Galvin [1976-1977] I.L.R.M. 41 the plaintiff sued the defendant for assault and battery which was alleged to have been perpetrated on the plaintiff in the drawing room of the defendant’s house. The defendant sought to have the action remitted to the Circuit Court, but the plaintiff contended that this would deprive him of his right to trial by jury.
35. McWilliam J. approved a statement from Wylie’s Judicature Acts (1905) with regard to the statement of the pre-1877 Act law to the effect that ([1976-1977] I.L.R.M. 41, 43) that:
37. A similar conclusion had been reached by the Supreme Court in a series of (pre-1988 Act) cases dealing with the question of whether the plaintiff was entitled to a jury trial in respect of a claim in negligence. Thus, for example, in Cox v. Massey  I.R. 243 Ó Dálaigh C.J. said ( I.R. 243, 248) that as the plaintiff had sued in negligence for personal injuries:
39. This point was expressly made by Griffin J. who said ( I.R. 249, 263) that as the action was one in negligence “the plaintiff is entitled as of right to have his action tried before a judge and jury”. Kenny J. spoke to the same effect ( I.R. 249, 264)) when he stated that “the plaintiff has sued in tort [for negligence] and so is entitled to have his case tried by a jury: see s. 94 of the Courts of Justice Act 1924.” Subsequently in another negligence case, Holohan v. Donohoe  I.R. 45, 49, Finlay C.J. observed that s. 94 of the 1924 Act gave “to a plaintiff in certain types of cases, of which this is one, the right in the High Court to trial involving the determination of questions of fact by a jury.”
40. While it is true that this right to jury trial was removed by the 1988 Act so far as actions in negligence is concerned, this does not take from the underlying principle which emerges from cases such as McDonald and Finlay, namely, that the effect of both s. 48 of the 1877 Act and s. 94 of the 1924 Act is that where a party to common law litigation had a right to jury trial prior to the operation of the 1877 Act and that right was not subsequently altered or diluted by statute, then that party was entitled to a jury trial as of right.
41. This case-law further re-inforces the conclusion that the High Court simply has no jurisdiction to dilute the plaintiff’s right to jury trial in respect of this defamation action. It is accordingly clear that the plaintiff is entitled by virtue of these statutory provisions to jury trial as of right and that entitlement, where applicable, cannot be abrogated by judicial order under any circumstances, even if (as here) the step was taken for the most understandable reasons of efficiency and case management.