Fox v The Director Of Public Prosecutions and Ors (Approved)

Factual and Procedural Background

The Plaintiff is a professional entertainer and well known comedian. The Defendants are the Director of Public Prosecutions (the "DPP"), the Commissioner of An Garda Síochána and the State (together the "State Defendants"). The Plaintiff was charged in the District Court in The City with a sexual offence said to have occurred in December 2018. At a preliminary hearing in July 2019 the Plaintiff's solicitor applied for anonymity and reporting restrictions for the Plaintiff; that application was refused and bail was granted. The prosecution proceeded in early 2020 but was dismissed at a hearing in March 2020 after the Plaintiff successfully applied to dismiss the prosecution; the Plaintiff was acquitted.

The Plaintiff commenced these proceedings on 17 February 2021 seeking damages for alleged breaches of constitutional rights (including alleged damage to reputation), damages for reckless infliction of emotional distress, remedies under the European Convention on Human Rights Act 2003 and a declaration that section 7 of the Criminal Law (Rape) Act 1981 is unconstitutional or incompatible with the ECHR because it treats complainant anonymity differently to accused anonymity.

The Plaintiff applied under Order 36, rule 5 of the Rules of the Superior Courts for the plenary action to be tried by a judge sitting with a jury. The Defendants accepted the rule in principle gives the Court a discretion but opposed exercise of that discretion in this case. The judgment was delivered by Judge [Last Name].

Legal Issues Presented

1. Whether, under Order 36, rule 5 of the Rules of the Superior Courts, the Court should exercise its discretion to direct that this civil action (containing claims for breaches of constitutional rights, ECHR remedies and a declaration of unconstitutionality) be tried by a judge sitting with a jury.
2. If such a discretion exists in principle, whether the specific facts and legal architecture of this case amount to exceptional circumstances warranting a jury trial.

Arguments of the Parties

Plaintiff's Arguments

• The substance of the claim is vindication of the Plaintiff's reputation and damages for reputational harm, matters traditionally assessed by a jury.
• The likely evidence (including CCTV and witness statements) is suitable for a jury; there will be little complex expert evidence.
• The Plaintiff is a public figure whose reputation was publicly damaged; a jury assessment is the most appropriate means of vindication.
• The Plaintiff does not assert a statutory right to a jury and accepts constitutional/declaratory issues would be for the judge, but submits Order 36, r.5 confers a discretion to order a jury trial in such mixed cases.

Defendant (DPP)'s Arguments

• The DPP strongly disputes that the prosecution was recklessly brought; the decision to prosecute is entitled to a margin of deference and is generally not reviewable absent bad faith or improper motive.
• The case raises significant legal issues (including the legal boundary for challenges to DPP decisions) unsuitable for resolution by a jury.
• The default is judge-alone trial and the Plaintiff bears a clear onus to show exceptional circumstances to warrant a jury.

State Defendants' Arguments

• The allegations appear principally directed at the DPP; there is little pleaded complaint about the Garda investigation.
• The constitutional challenge to section 7 and other complex legal questions are unsuitable for jury determination; a jury cannot determine declarations of constitutionality.
• The pleadings engage the law of defamation, absolute privilege (section 17(2) Defamation Act 2009) and novel constitutional tort issues; these raise legal complexity and make a jury trial unwieldy.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by considering the historical and statutory context of civil jury entitlement, noting a gradual reduction in civil claims triable by jury since the mid-19th century and that any jury entitlement in civil cases is statutory. The Court observed uncertainty whether Order 36, r.5 was intended to broaden jury trials to modern constitutional torts, but proceeded on the assumption that a discretion in principle exists.

The Court identified that the exercise of the discretion under Order 36, r.5 in cases without a statutory jury right should be exceptional and articulated a non-exhaustive list of factors relevant to that exercise: (i) nature and substance of claims; (ii) appropriateness of jury assessing damages; (iii) complexity of evidence relating to damages; (iv) presence of non-jury issues (declarations/injunctions); (v) risk of conflicting findings or overlapping evidence; (vi) likelihood of legally complex issues requiring rulings during trial; (vii) impact on cost and duration; and (viii) whether public importance makes an unreasoned jury decision undesirable.

The Court applied those factors to the facts: the plaintiff's claims are multiple and legally novel (constitutional torts, ECHR remedies, declaration of unconstitutionality) and overlap with common law tort questions (defamation, malicious prosecution) and statutory defences (absolute privilege). Significant legal issues would need antecedent judicial determination (limitations, viability of constitutional tort as alternative to defamation, scope of DPP's legal immunity/margin of error, constitutionality of section 7) and there was a real risk of overlapping factual issues relevant both to judge-determined matters and jury-assessed damages. Practical problems of a hybrid trial (e.g. jury being absent while complex legal issues are argued, inability to know jury reasons) and likely increased cost and duration weighed heavily against ordering a jury trial.

Holding and Implications

APPLICATION REFUSED

Holding: The Court refused the Plaintiff's application under Order 36, rule 5 to have the trial of the plenary action heard by a judge sitting with a jury.

Implications: The direct effect is that the proceedings will not be set down for trial before a jury and will proceed before a judge sitting alone. The Court indicated it would hear the parties as to any further orders and costs. The judgment notes the novelty of the claims but does not purport to establish a new rule extending the ambit of Order 36, r.5; no broader precedent expanding civil jury entitlement was established by this decision.