Order 36, rule 5 RSC: Jury Trial as an Exceptional Direction and the Unsuitability of Hybrid Constitutional/ECHR Damages Actions

1. Introduction

In Fox v The Director Of Public Prosecutions and Ors (Approved) [2026] IEHC 231, Quinn J (High Court) determined an interlocutory application seeking a direction that a plenary action be tried by a judge sitting with a jury under Order 36, rule 5 of the Rules of the Superior Courts (“RSC”).

The plaintiff, a well-known entertainer, sued public authorities including the Director of Public Prosecutions (“DPP”) and State defendants, seeking (i) damages for alleged breaches of constitutional rights (notably the right to a good name), (ii) damages under the European Convention on Human Rights Act 2003, (iii) damages for alleged reckless infliction of emotional distress, and (iv) a declaration that section 7 of the Criminal Law (Rape) Act, 1981 is unconstitutional and/or incompatible with the ECHR because it provides anonymity/reporting restrictions for complainants but not automatically for accused persons.

The action arose from a District Court prosecution for sexual assault (under amending provisions to sexual offences legislation) that was ultimately dismissed, resulting in the plaintiff’s acquittal. The plaintiff’s complaint focused on (a) the decision to prosecute said to be reckless/irrational in light of CCTV and witness evidence, and (b) the refusal of anonymity at a preliminary hearing and resulting publicity. He accepted he had no statutory entitlement to a civil jury trial “as of right”.

2. Summary of the Judgment

The Court refused to direct a jury trial. Even assuming (without deciding) that Order 36, rule 5 confers a discretion capable of extending to modern constitutional/ECHR causes of action, Quinn J held that exercising that discretion would be exceptional and that the cumulative features of this case made it undesirable and inappropriate for a jury.

Central to the refusal were: the “hybrid” character of the proposed trial (jury for damages while the judge determines constitutionality and multiple threshold legal issues), the novelty and public importance of the legal questions, the risk of confusion/inconsistency in fact-finding, and the practical burdens (delay, rulings mid-trial, cost, and duration) inherent in running a jury alongside complex legal adjudication.

3. Analysis

3.1 Precedents Cited

  • Lennon v HSE [2015] 1 IR 92 (Court of Appeal): used primarily for the historical trajectory of civil jury trial entitlements and the preservation of jury trial in defamation as a “common law right” preserved by statute; it also illustrates the courts’ attention to the substance of proceedings where jury-entitled and non-jury claims intersect.
  • DF v. Commissioner of An Garda Siochana [2015] 2 IR 487 (Supreme Court): key for (i) the proposition that civil jury trial entitlement is statutory, and (ii) the “substance of the claim” approach where jury-entitled torts (e.g., false imprisonment/assault) are joined with constitutional/ECHR claims. Charleton J’s scepticism as to the utility of certain jury-related rules was also noted.
  • Fulham v Chadwicks Ltd. [2019] IEHC 926 (Barton J), appeal noted at [2021] IECA 72: relied upon for the conclusion that there is no “equitable” civil jury right and for the observation that it is “far from clear” on what basis Order 36, rule 5 could now be used to order a jury trial for constitutional rights claims.
  • Bradley v Maher [2009] IEHC 389 (Clarke J): treated as an important analogue on the difficulties of “hybrid” trials where a jury determines only part of a multi-issue case—duplication of evidence, witness recall, and coherence problems between judge and jury fact determinations (with the jury giving no reasons). Quinn J used this to frame practicality and administration-of-justice concerns.
  • Higgins v IAA [2023] 1 IR 65: cited (obiter passage from Hogan J) on defamation law as a constitutional balancing exercise between free expression and the right to a good name, reinforcing the complexity of any contention that defamation law is “inadequate” as a means of vindicating Article 40.3.2°.
  • Clarke v. O'Gorman [2014] 3 IR 340 and Hanrahan v Merck Sharp Dohme [1988] IESC: authority for the principle that existing torts are ordinarily the means by which the State vindicates constitutional rights; a “constitutional tort” claim typically requires showing inadequacy of established causes of action. This foreshadowed significant threshold disputes in the plaintiff’s pleadings (and thus, unsuitability for a jury setting).

3.2 Legal Reasoning

(a) Order 36, rule 5 in historical context. Quinn J placed the discretion in its procedural and historical setting: civil juries were once the norm for common law damages claims, but legislative reforms steadily curtailed civil jury trial categories (e.g., Courts of Justice Act 1924; Courts Act 1971; Courts Act 1988). Against this backdrop, the continuing presence of Order 36, rule 5—an apparently broad “unless the Court shall otherwise order” discretion—must be read cautiously.

The judgment contains an important obiter warning: given constitutional torts and declarations of unconstitutionality were unknown pre-1937 (and could not have been within the original contemplation of 19th-century jury trial practice), there is “significant doubt” whether Order 36, rule 5 should be interpreted as extending to proceedings principally of that kind. However, the Court did not decide the motion on that interpretive ground; it assumed the discretion existed “in principle” and refused relief on case-specific suitability.

(b) The discretion is exceptional; the default is judge-alone. Where no jury entitlement exists as of right, Quinn J held that a direction under Order 36, rule 5 should be exceptional, placing an onus on the moving party to demonstrate circumstances justifying departure from the default.

(c) An articulated, non-exhaustive set of factors. The most precedent-setting aspect of the judgment is the structured list of factors relevant to whether a judge should “otherwise order” a jury trial under Order 36, rule 5 (para. 91). Quinn J identified:

  1. the nature and substance of the claims;
  2. whether damages assessment is generally appropriate for a jury;
  3. whether damages evidence is too complex for a jury;
  4. presence of claims (e.g., declarations/injunctions) not determinable by a jury;
  5. risk of conflicting fact findings / overlapping evidence across issues;
  6. likelihood of legally complex issues causing delay or mid-trial rulings;
  7. cost and duration implications of a jury direction;
  8. whether wider public importance makes a non-reasoned jury outcome less desirable.

(d) Application of the factors to the pleaded case. While reputational damages are traditionally within a jury’s competence in High Court defamation trials, the Court held this was outweighed by the case’s architecture:

  • The claim sought to “sidestep” defamation (relying on constitutional damages because of absolute privilege for court statements under section 17(2) of the Defamation Act 2009), and to challenge prosecutorial decision-making without pleading malicious prosecution—novel choices that invited major threshold disputes.
  • The case included a constitutional challenge to section 7 of the Criminal Law (Rape) Act, 1981, inevitably requiring reasoned judicial findings, potentially on disputed facts relevant also to damages. This created acute “hybrid trial” problems of coherence and sequencing.
  • The Court considered it undesirable for major, potentially precedent-shaping legal issues (defamation’s constitutional adequacy; boundaries of liability for a decision to prosecute; constitutionality of reporting restrictions) to be litigated in a setting where key determinations by a jury would be unreasoned and where the judge might be forced into substantial legal rulings mid-trial.
  • Practicalities—sending jurors out during legal argument, managing overlaps, and extended trial length—militated against an order that would consume scarce court resources.

The Court stressed that its refusal was not a denial of the traditional role of juries in reputational damages, but a conclusion that the proposed jury mechanism was incompatible with the legal and procedural demands of the case as pleaded.

3.3 Impact

(1) A workable framework for Order 36, rule 5. The eight-factor set in para. 91 provides a structured template for future applications where no jury right exists. It is likely to become the primary reference point for litigants seeking a discretionary civil jury.

(2) “Hybrid trial” caution in constitutional/ECHR litigation. The decision signals strong judicial reluctance to combine jury-assessed damages with judge-determined constitutional validity and complex public law/threshold issues, especially where factual disputes overlap. This is likely to discourage attempts to secure a jury by characterising a case as reputational vindication while pleading constitutional/ECHR and public law elements.

(3) Emphasis on reasoned development of law in novel areas. The judgment links “wider public importance” to the undesirability of unreasoned jury outcomes, suggesting that where proceedings could shape legal boundaries (e.g., prosecutorial liability; constitutional tort scope; statutory anonymity regimes), judge-alone trial is strongly preferred.

(4) Obiter doubt about the scope of Order 36, rule 5. Although not decisive, the observation that the rule’s ambit may not readily extend to constitutional tort and unconstitutionality claims could be deployed in later cases to resist such applications at the interpretive threshold.

4. Complex Concepts Simplified

  • Order 36, rule 5 (RSC): the procedural rule stating that where there is no jury right, the trial is judge-alone “unless the Court shall otherwise order”. This case explains that any such “otherwise” order is exceptional and guided by suitability factors.
  • Constitutional tort: a damages claim said to arise directly from breach of constitutional rights. Irish case law (as noted via Clarke v. O'Gorman [2014] 3 IR 340 and Hanrahan v Merck Sharp Dohme [1988] IESC) indicates courts expect litigants to use established torts first, unless those are inadequate to vindicate the constitutional right.
  • Absolute privilege (Defamation Act 2009, s.17(2)): a complete defence for certain statements (including in-court statements), meaning a plaintiff cannot sue in defamation in respect of them even if reputational harm is alleged.
  • “Hybrid trial” problem: where a jury decides some issues (often damages/facts) but a judge must decide others (injunctions, constitutionality, limitation, legal viability). The difficulty is coordination: overlap of evidence, risk of inconsistency, and the absence of jury reasons.
  • Statute-barred: a claim brought outside the relevant limitation period, giving a defendant a complete defence irrespective of the merits.

5. Conclusion

[2026] IEHC 231 is a significant procedural decision on the practical limits of discretionary civil jury trial under Order 36, rule 5. Quinn J affirmed that, absent a statutory jury right, a jury direction is exceptional and must be justified by the overall suitability of the case.

The judgment’s principal contribution is its structured set of factors governing the discretion and its clear message that actions combining constitutional/ECHR damages, challenges to prosecutorial decision-making, and declarations of unconstitutionality—particularly where issues are novel and of public importance—are generally incompatible with a jury trial format.