An Mithid Duinn an Truicear a Tharraingt ar Airteagal 8.3 de Bhunreacht na hÉireann 1937?

• Author: Ciara Woulfe
• Position: BCL Law and Irish, University College Cork
• Pages: 77-79

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leads to concerns in relation to judges being overly partisan and politically oriented.

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There

are similar concerns about the Irish judicial appointments process.

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All of the above raises

questions over how much more reliable judges are in making legal decisions than randomly

selected juries.

As noted, in Leech the Supreme Court substituted the initial award presented by the High Court

jury of €1.87 million with a smaller but still very high sum of €1.25 million, but this figure was

several times higher than the maximum amount of damages a court in the English and Welsh

jurisdiction could.

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The European Court of Human Rights noted that the award was fifty times

higher than the national average wage at the time.

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It is highly possible that the Irish Supreme Court was anchored by the jury’s High Court award

when calculating the amount of damages with which it would substitute the High Court’s

award. There was very little explanation for the substituted award being so high. The European

Court of Human Rights, when it was tasked with reviewing the Leech decision, found no

‘relevant and sufficient’ explanation by the Supreme Court for its award, which violated Article

10 the ECHR.

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This is somewhat troubling for the argument that judges are far more reliable than juries in

terms of assessing damages in defamation cases. Several other points made by Rachlinski,

Wistrich and Guthrie outline further challenges to this school of thought.

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Anchoring has a

major effect on decision-making in the law, which may extend to Supreme Court’s substitution

of High Court damage awards.

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In an experiment conducted by Rachlinski, Wistrich and Guthrie, judges were asked to review

a hypothetical case and provide a numerical judgment.

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Some judges in the experiment were

33

John R Lott Jr, Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench (Bascom

Hill Publishing Group2013).

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The Irish Times View, ‘Judicial Appointments: The Farce Goes On’ (The Irish Times, 26 April 2018)

<https://www.irishtimes.com/opinion/editorial/judicial-appointments-the-farce-goes-on-

1.3474040?mode=sample&auth-failed=1&pw-

rigin=https%3A%2F%2Fwww.irishtimes.com%2Fopinion%2Feditorial%2Fjudicial-appointments-the-farce-

goes-on-1.3474040> accessed 5 March 2020.

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Lord Justice Jackson (n 11). Note that this comparison is of limited relevance, given that there was, and still is,

not any cap in Ireland on damages in a defamation case. Nevertheless, it accentuates the difference between the

jurisdictions’ legal positions; Carolan (n 10); Phelan (n 8).

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Independent Newspapers (Ireland) Limited v Ireland App No 28199/15 (ECHR, 15 June 2017).

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ibid [105].

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Rachlinski, Wistrich and Guthrie (n 31).

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Yuval Feldman, Amos Schurr and Doron Teichman, ‘Anchoring Legal Standards’ (2016) 13(2) Journal of

Empirical Legal Studies 298.

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Rachlinski, Wistrich and Guthrie (n 31) 718.

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informed of damage caps before delivering their judgment of a case the researchers estimated

would produce an award between $30,000 and $50,000. The only issue the judges were faced

with was determining the amount of damages that should be awarded to the hypothetical

plaintiff for pain and suffering. The caps mentioned to some of the judges ranged from

$332,236 to $750,000.

For the judges to whom $332,236 was mentioned as a damage cap for the action, the reference

to the cap was statistically significant. Their median award was $85,000, as opposed to $57,500

for the judges who were not informed of the cap. For the judges to whom $750,000 was

mentioned, the effect of the reference to the cap was even stronger. The median award for that

group was $250,000 as opposed to $100,000 for the judges who were not reminded of the cap

before making their judgment.

These results show that judges are very much prone to biases. The judges who were part of the

group to which $332,236 was mentioned were all likely aware of the damages cap as it had

existed in their jurisdiction since 1978.

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Yet, a mere reference to the cap before making their

judgments had a significant effect on their judgments compared to other judges who had

constructive knowledge of the cap, but were just not reminded of it directly before their

judgments were made. In theory the reference should not have had an effect on the judgments,

but the reality was very different.

In another experiment by Rachlinski, Wistrich and Guthrie, the effect on judgments of the order

in which information is presented to judges was tested.

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Three groups of judges from various

parts of the world were asked to determine appropriate sentences for two crimes. The first crime

was assault and the second was voluntary manslaughter. These crimes were intended to contrast

each other in terms of seriousness.

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Half of the judges decided on the less serious case first

and the other half decided on the more serious one. This affected the sentences decided on by

the judges. After reviewing the less serious case first, judges were inclined to believe that a

long sentence for the more serious crime was inappropriate and after reviewing the more

serious case first, judges felt that a short sentence for the second case was insufficient, despite

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Andrews v Grand & Toy Alberta Ltd [1978] 2 SCR 229 (Can); Arnold v Teno [1978] 2 SCR 287 (Can); Thornton

v Prince George School District No 57 [1978]2 SCR 267 (Can).

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Rachlinski, Wistrich and Guthrie (n 31) 724.

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ibid.