Fox v DPP, High Court Ireland, 17th Apr

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Fox v The Director Of Public Prosecutions and Ors (Approved) [2026] IEHC 231 (17 April 2026)
URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC231.html
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THE HIGH COURT

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[2026] IEHC 231

Record No. 2021/986P

Between:

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SYLVESTER FOX

Plaintiff

AND

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THE DIRECTOR OF PUBLIC PROSCEUTIONS,

THE COMMISSIONER OF AN GARDA SÍOCHÁNA,

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND THE ATTORNEY GENERAL

Defendants

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Judgment of Mr. Justice Oisín Quinn delivered on 17 April, 2026

I.          INTRODUCTION

1.         This judgment concerns an application by the Plaintiff ("Mr. Fox") for the trial of his plenary action to be heard by a judge sitting with a jury.  Mr. Fox's claim is largely one for damages for alleged breaches of constitutional rights together with a claim for a declaration that a particular statutory provision is unconstitutional and/or incompatible with the European Convention on Human Rights.  Mr. Fox accepts that his claim is not one to which there is any entitlement to a trial with a jury as of right.

2.         Rather, Mr. Fox's application is made pursuant to Order 36, rule 5 of the Rules of the Superior Courts which provides that:-

" 5. All causes or matters, which the parties are not entitled as of right to have tried          with a jury, shall be tried by a Judge without a jury, unless the Court shall otherwise    order."

3.         For the purposes of this application, the defendants did not dispute that Order 36, rule 5 did give the Court a discretion to direct a trial of this action with a jury, but they contended that this case was wholly unsuitable for such a trial and that accordingly the Court should exercise its discretion to refuse the application.

II.        BACKGROUND

(i)         The parties

1. The plaintiff is a professional entertainer and well known comedian with over fifty years of experience in the entertainment industry. The defendants are firstly the DPP and secondly the Garda Commissioner and the State (the "State Defendants").

(ii)        Context giving rise to these proceedings

5.         The background to these proceedings concerns the unsuccessful prosecution of Mr. Fox for an alleged offence contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended by section 27 of the Sex Offenders Act, 2001.

6.         In short, Mr. Fox was charged in the District Court with the sexual assault of a female at a bar in Dublin in December 2018. Pursuant to section 7 of the Criminal Law (Rape) Act, 1981 the complainant was entitled to anonymity and reporting restrictions; however Mr. Fox was not automatically entitled to the same protections.

7.         There was a preliminary hearing before the Dublin District Court on 25 July 2019. According to the statement to claim, Mr. Fox's solicitor had been provided with the CCTV footage of the alleged incident and the statements made in respect of the alleged incident. At this preliminary hearing Mr. Fox's solicitor applied for anonymity and/or reporting restrictions in respect of Mr. Fox. This application was unsuccessful. Mr. Fox was granted bail.

8.         According to the statement to claim, Mr. Fox was then subject to "intense media exposure in relation to the allegation in the following months".

9.         The prosecution went ahead in February 2020. After the prosecution case closed the hearing was adjourned to a date in March 2020 when a successful application was made on behalf of Mr. Fox to have the prosecution dismissed.  This application was made on the basis, according to the statement of claim, that the CCTV footage "offered clear and unambiguous evidence that the complainant's account cannot be true".  The District Judge acceded to the application and the case against Mr. Fox was dismissed. Accordingly, Mr. Fox has been acquitted of the charge.

(iii)       The issues raised in these proceedings

10.       These proceedings were then commenced on the 17 February 2021. In summary, Mr. Fox  claims damages for breach of constitutional rights including the right to his good name, damages for alleged reckless infliction of emotional distress, damages under the European Convention on Human Rights Act, 2003 together with aggravated and exemplary damages. In addition Mr. Fox seeks a declaration that section 7 of the Criminal Law (Rape) Act, 1981 ("the 1981 Act") is unconstitutional on the basis that it treats the complainant and the accused differently in terms of the question of anonymity.

11.       In the defence delivered on behalf of the DPP a number of preliminary objections are set out. Firstly, it is contended that the claim for damages pursuant to the ECHR Act, 2003 is statute barred. Secondly it is claimed that Mr. Fox should have brought defamation proceedings in relation to his claim for damage to his good name. Next, it is said that he is accordingly bound by the statutory limitation period applicable to defamation actions and that accordingly his claim for damages for breach of his constitutional right to his good name is also statute barred. Next, it is said that as a matter of law Mr. Fox should have sought damages pursuant to the recognised torts that exist in respect of the constitutional rights in respect of which he seeks damages; for example, defamation and malicious prosecution.

12.       Thereafter, the defence of the DPP disputes various factual matters and admits others. In particular it is claimed that the decision to prosecute was bona fide and lawful and constituted no actionable wrong.

13.       In the affidavit of Mr. Fox's solicitor grounding this application, it is explained by way of reply to these points, that Mr. Fox is only pursuing constitutional tort remedies because he claims he was precluded from bringing a defamation action due to the complete defence of absolute privilege available to the defendants under section 17 (2) of the Defamation Act 2009.

14.       In addition, it was explained in the oral submissions on behalf of Mr. Fox that it was not being alleged that the decision of the DPP to prosecute Mr. Fox had been made maliciously and consequently it was accepted that he could not maintain a claim for malicious prosecution. Rather, it was contended that the decision to prosecute was reckless in light of the evidence that had been obtained by the prosecution.

15.       In Replies to Particulars it is clarified on behalf of Mr. Fox that what is being alleged was that the prosecution "was unreasonable and/or irrational"; see Reply 6 (iii).

16.       At paragraph 41(iii) of the Statement of Claim it is alleged that there was a failure by the defendants "to conduct a reasonable consideration or review of the CCTV and witness evidence which would have militated against a prosecution".

17.       In the affidavit filed on behalf of the DPP it is explained how the claim that the decision to prosecute had been unreasonable and/or irrational will be defended. It is asserted that the decision to prosecute was reasonable and that the CCTV footage was not inconsistent with the statement made by the complainant. In addition it is contended that even if the evidence given by the prosecution witnesses at the trial was different from that contained in their statements that "this does not mean that the original decision to prosecute was incorrect or was reached in a manner that was in any way unlawful".

18.       In the defence of the State Defendants there are also a number of preliminary objections which include a plea that the claim for damages pursuant to section 3 of the ECHR Act, 2003 is statute barred.

19.       There are then a number of admissions in respect of some of the factual matters alleged and thereafter there is a full defence in relation to the claim made against the State Defendants, including a plea that the decision not to grant anonymity to Mr. Fox was made by the District Court Judge having heard an application on behalf of Mr. Fox in that regard. That decision was not appealed or made the subject of any application for judicial review.

20.       There is also a plea in the defence of the State Defendants that the claim made does not distinguish between each of the defendants as to which wrongs are alleged against each defendant. There is then a comprehensive denial on the part of the State Defendants that they are guilty of any alleged wrongs as claimed.

III.       SUMMARY OF THE SUBMISSIONS

21.       This application was heard on Friday 20 March 2026. The court was given the benefit of very helpful written submissions on behalf of Mr. Fox, the DPP and the State Defendants.

22.       Very helpful oral submissions were then made by Mr. Barra McGrory, SC (with Mr. Eamonn Dornan, BL) on behalf of Mr. Fox, Mr. Conor McKenna, BL on behalf of the DPP and Mr. Paul O'Higgins, SC (with Mr. Tomás Keys, BL) on behalf of the State Defendants.

(i)         Summary of the Plaintiff's Submissions

23.       Mr. Fox's written submissions emphasised that the starting point was to look at the substance of the claim.  This was the approach adopted by the courts in the analogous applications where a cause of action in respect of which a plaintiff has a statutory right to a jury (for example a claim for damages for civil assault) was combined with other causes of action (for example negligence).

24.       The substance of Mr. Fox's claim was submitted to be an action for vindication of his reputation and damages for reputational damage.  It was submitted that Mr. Fox had a public reputation and this had been very publicly damaged. Therefore, it was submitted, a jury assessment and award of damages was the most appropriate way to vindicate Mr. Fox's constitutional right to his good name.

25.       In addition, the likely evidence to be considered at the trial was convenient for a jury to grapple with, it was contended.  There would be no complex expert or accounting evidence. Assessing the factual matters in dispute and measuring damages for the effect of the wrongs alleged on Mr. Fox's reputation were matters well within the traditional competence of a jury.

26.       While there would be legal issues, the judge could deal with those in the context of the jury trial as can happen, it was submitted.

27.       Mr. McGrory, SC explained that Mr. Fox was not contending that he had a statutory right to have this case tried with a jury. He accepted that Mr. Fox's claim that section 7 of the Criminal Law (Rape) Act 1981 was not compatible with his constitutional rights could not be determined by the jury but would require to be considered by the judge in the context of the overall trial.

28.       Mr. McGrory, SC contended that Order 36, rule 5 of the RSC gave the court a discretion to direct trial by jury in this case. While there were elements of the case that would require decisions to be made by the judge, the substance of the claim was ultimately to seek to vindicate the good name and reputation of Mr. Fox which was most appropriately done by a jury.

29.       He claimed that the prosecution had been brought recklessly and improperly. This submission was made carefully and Mr. McGrory, SC confirmed that malicious intent was not being alleged. Rather, Mr. Fox's case was that there was a degree of recklessness on the part of the DPP.  The jury could assess the facts in relation to this issue.  They would not be complicated.  It would largely involve a consideration of the CCTV footage and statements obtained during the garda investigation.

30.       Mr. McGrory, SC emphasised that Mr. Fox had a public reputation and that as a result of the wrongs alleged he had suffered significant reputational damage. It was contended that it was desirable and necessary therefore for a jury to consider the wrong and assess the damages if Mr. Fox was to achieve a full and proper vindication of his reputation.

31.       Mr. McGrory, SC accepted that the DPP had a degree of protection and margin of error but he claimed that in this case, this power of the DPP was exercised with a degree of recklessness to create a legal liability to Mr. Fox.

32.       He submitted that the essence of the damage which Mr. Fox alleged he had suffered was damage to his good name. He submitted that the public acquittal was insufficient to vindicate Mr. Fox's good name.

33.       Mr. McGrory, SC submitted that the test was whether or not the DPP had sufficient evidence to determine that there were reasonable prospects of a conviction and he contended that at trial Mr. Fox's case would be that an examination of the CCTV footage and the statements collected by the prosecution would show that there was no reasonable prospects of any prosecution succeeding.

34.       He submitted that historically the role of the jury was key in assessing damage to reputation.

35.       He conceded that there was precious little authority available to indicate how and in what circumstances the apparent discretion in Order 36, rule 5 should be exercised. In the context of this application he submitted that the court should pay significant regard to the gravity of the consequences for Mr. Fox of the wrong alleged. He pointed to the fact that Mr. Fox was a public figure with a public reputation and the wrongs being alleged were wrongs alleged against public bodies. In substance, the constitutional right in question was primarily the right to a good name which traditionally was vindicated by awards of damages measured and assessed by a jury.

36.       He accepted that Mr. Fox was not contending that there was an equitable right to a trial by jury. He also accepted that in a civil case the entitlement to a jury was a matter for statute. He indicated that the authorities suggested the court looked at the substance of the claim. He submitted that the substance of the claim here was to vindicate Mr. Fox's right to his good name which was traditionally protected by a decision of a jury which would assess the facts and, if the plaintiff was successful, assess the damages.

37.       He accepted that the plaintiff's challenge to section 7 of the 1981 Act would be a matter for the judge.

(ii)        Summary of the DPP's Submissions

38.       Mr. McKenna, BL made very helpful oral submissions on behalf of the DPP. Firstly, he brought the court to the detailed averments in the affidavit filed on behalf of the DPP and pointed out that it was the position of the DPP that the contention that the prosecution was recklessly brought was strongly disputed on the facts in this case.

39.       He pointed to the fact that the DPP has a special status in law and that the DPP's decisions are generally not reviewable absent bad faith, improper motive or improper policy and he pointed out that allegations of that sort were not being made by the plaintiff in this case.

40.       Mr. McKenna, BL submitted that the legal arguments around where the boundary line should be drawn in respect of a challenge to a decision of the DPP to initiate a prosecution was not a matter suitable for a trial which would involve a jury.

41.       He contended that it was clear that this trial would involve significant issues of law that would make this case wholly unsuitable for the jury. He referred to the legal issues raised in the pleadings in that regard.

42.       Mr. McKenna, BL submitted that the default position was that an action of this sort would not have the benefit of a jury and that therefore there was a clear onus on the plaintiff to persuade the court to exercise its discretion in favour of the application.

43.       He submitted that the nature of the case and the complex legal issues likely to arise meant this claim was wholly unsuitable for trial by a jury.

44.       Mr McKenna, BL submitted that any claim involving a challenge to the constitutionality of the legislative arrangements that seek to provide for a balance between various different constitutional  rights and imperatives would require an examination of the full legal and factual context. He helpfully explained to the court that Mr. Fox had not been without options in the event that he or his legal advisors considered that the evidence assembled could not reasonably have supported a prosecution.  He explained that section 4E of the Criminal Procedure Act, 1967 as amended allows, in the context of Circuit Criminal Court trials, an application to be made that there is no case to answer. He accepted that this procedure did not exist at District Court level, however he pointed to section 6 of the Prosecution of Offences Act, 1974 which he explained allows a submission in writing to be made to the DPP in relation to a matter such as this.

45.       He explained that it was appropriate for an accused to decide "to keep their powder dry", so to speak, at the preliminary hearing but that ultimately the process here vindicated the plaintiff, in that the plaintiff was acquitted.

(iii)       Summary of the State Defendants' Submissions

46.       Mr. Paul O'Higgins, SC made very helpful oral submissions on behalf of the State Defendants. Firstly, he questioned what the nature of the claim was in respect of the second named defendant at all, as he pointed out that there was no allegation or complaint in relation to the investigation carried out by the gardai. He explained that the nature of the wrong alleged seemed to be focused on the DPP's decision to prosecute.

47.       In relation to the claim in relation to the constitutionality of section 7, he said this clearly was not a suitable claim to be considered by a jury.

48.       He said the bulk of the complaints were in relation to alleged breach of constitutional rights and rights pursuant to the ECHR and all of these claims involved consideration of complex legal issues which were wholly unsuitable for consideration by a jury.

49.       He submitted that any trial of this action with a jury would be wholly unwieldy. Some of the legal issues were potentially complex. For example, the question as to whether the law of defamation adequately protected the constitutional right to a person's good name.  He questioned how it could be desirable or convenient for a trial judge to have to grapple with those issues, which may potentially merit a reserved or written decision due to their complexity and novel nature, while running a case with a jury.

50.       He agreed that this application appeared to be the first time that a plaintiff with no statutory entitlement as of right to a civil jury for any aspect of the case was seeking such an order. Accordingly, he submitted that of its nature such an order would be exceptional.

51.       He submitted that the core substance of this case was essentially not capable of being decided by a jury much less being preferable to have it so decided.

52.       He made the point that the courts would only consider relying on a constitutional claim where the existing common law tort was not adequate and he referenced Hanrahan v Merck Sharp Dohme [1988] IESC in this regard. This issue, he contended, would involve a complex and nuanced consideration of the ambit of the tort of defamation as encompassed by the various provisions in relation to defamation contained in the Defamation Act, 2009.  This issue would have to be resolved in Mr. Fox's favour, he submitted, before a jury could even contemplate assessing damages for the putative tort of breaching the plaintiff's constitutional right to his good name.

53.       The complexity went further, he argued. The question of absolute privilege provided for by section 17 of the 2009 Act was an example of the Oireachtas balancing competing constitutional imperatives, namely freedom of speech, the importance for the administration of justice in persons having protection for statements made in court, and the individual's entitlement to protection for their good name.  There was no challenge to the constitutionality of section 17 of the 2009 Act, and any exercise weighing up the ambit of the statutory provisions in relation to defamation would be complex and meant it would be wholly unwieldy and unsuitable for such issues to be considered in a trial to be carried out with a jury. These submissions, he explained, were without prejudice to the more fundamental arguments the State Defendants would make in relation to the nature of the claim being advanced by Mr. Fox.

54.       Furthermore, Mr. O'Higgins, SC submitted that it was wholly undesirable that a trial judge in the middle of a jury trial would have to engage in questions around the constitutionality of section 7 of the Criminal Law (Rape) Act, 1981.

55.       He submitted that it would be wholly unsuitable for a judge to have to work out how to guide a jury in terms of awarding damages in respect of the plaintiff's claim that his reputation has been damaged by virtue of an alleged unconstitutional piece of legislation. He explained that in terms of the way the plaintiff had constructed his case this would appear to envisage a separate award from the claim for damages for the alleged reckless prosecution.

56.       In summary, he contended that not only was the plaintiff's case novel, but the points at issue in this motion were novel. He said that it was not in dispute that there was no express right to a jury trial. He said it was not in dispute that the caselaw that does exist concerned cases usually whether other torts were being brought in to an action where there was a right to a jury trial. He said it was not in dispute that the preceding versions of the rules prior to Order 36, rule 5 could not have contemplated a constitutional tort. He submitted that overall this case must be well outside the bounds of the type of civil action that might be suitable to be heard before a jury.

IV.       RELEVANT LEGAL PRINCIPLES

(i)         A summary of the changes since the mid-19 th century concerning the entitlement to a jury in civil cases

57.       The legal background to the entitlement to a jury in civil actions is important as it informs the context in which the discretion contained in Order 36, rule 5 should be considered. Overall, this history demonstrates how legislative changes and reforms to the courts have tended to gradually reduce the type of civil claims that can be heard with a jury.

58.       This history is very helpfully considered by Hogan J. on behalf of the Court of Appeal in Lennon v HSE [2015] 1 IR 92 (see para.s 13-24), by Charleton J. for the Supreme Court in DF v. Commissioner of An Garda Siochana [2015] 2 IR 487 (see para.s 10-25), and by Barton J. in Fulham v Chadwicks Ltd. [2019] IEHC 926 (see para.s 13-22). These cases did not involve an application under Order 36, rule 5 for the trial of a civil action with a jury and consequently they do not contain any detailed analysis of the ambit of that rule and the apparent broad discretion contained therein.

59.       In Lennon, the plaintiff had issued defamation proceedings and separate judicial review proceedings arising out of related events. He sought a jury trial for his defamation proceedings. After the High Court had directed that his two sets of proceedings be heard together by a judge sitting without a jury, he appealed and this decision was overturned by the Court of Appeal who held that the plaintiff had a right to opt for a jury trial in respect of his defamation proceedings.

60.       In DF, the plaintiff's claim was for damages primarily for alleged false imprisonment and assault arising out of an incident where he was arrested and detained for an alleged public order offence.  The High Court had held that the plaintiff was entitled to a jury trial but that all issues concerning the legality of his arrest and detention should be determined by a judge sitting alone. On the plaintiff's appeal, the Supreme Court held that the plaintiff was entitled to a jury trial for his action as the substance of his case was a claim for damages for false imprisonment and assault and section 1(3) of the Courts Act, 1988 provided that the removal of the entitlement to a civil jury trial contained in section 1(1) of the 1988 did not apply to such claims. The key issue in DF was whether the joinder of other causes of action took the substance and nature of the claim away from one in respect of which there was an entitlement to a jury. This involved, in part, considering whether the other causes of action required a consideration of different acts or omissions. In DF, Charleton J. was satisfied that the case in substance was one for alleged false imprisonment and assault.  He held that the plaintiff had an entitlement to a civil jury trial for that claim and that any other claimed civil wrongs under the Constitution or the ECHR were entirely "within the decision of the trial judge".

61.       In Fulham, the plaintiff claimed damages primarily for alleged breach of his constitutional rights as a consequence of his imprisonment following unpaid debts. He did not make a formal claim for damages for the tort of false imprisonment and asserted a general equitable entitlement to a trial before a jury. Barton J. held that there was no equitable entitlement to a jury trial. Barton J. held in any event that the claim was bound to fail and he dismissed the proceedings. The decision was unsuccessfully appealed, [2021] IECA 72. The Court of Appeal judgment delivered by Haughton J. dealt primarily with the decision to dismiss the claim as being one bound to fail, consequently it is the High Court judgment of Barton J. that sets out the useful historical account of the right to trial by jury in civil cases.

62.       The judgments in Lennon, DF and Fulham, albeit in the context described above, each give very helpful consideration to the history and legal origins of the entitlement to a jury for civil cases. This history demonstrates that prior to the Court of Judicature Act (Ireland), 1877, plaintiffs could in general have common law cases for damages tried before a civil jury, whereas most cases in the chancery courts (where declarations and injunctions were typically sought) were decided by a judge sitting without a jury. However, by virtue of the Chancery Amendment Act 1858 and the Chancery Regulation (Ireland) Act 1862 there was scope for the chancery courts to direct, at the court's discretion, that certain issues of fact and the assessment of damages could be carried out by a civil jury. When the common law and chancery courts were fused by the 1877 Act the pre-existing entitlement to a jury in common law actions was preserved by section 48. In addition, the Rules of the Supreme Court (Ireland), 1891 provided for a discretion, in similar terms to that contained in Order 36, rule 5 for a court to direct a trial before a civil jury. The logic of retaining this power may have been to allow a judge, in the newly merged system after the 1877 Act, a discretion to direct that a claim that would in substance have been decided by a jury prior to the 1877 Act could still be so decided in appropriate cases. These cases would, on this understanding, have therefore been cases that included common law claims for damages. So, for example, as Hogan J. explains in Lennon at para 15, there was no question but that prior to the 1877 Act any party to defamation proceedings (a common law claim for damages) had the right to have that claim tried before a jury and this entitlement was not taken away by the 1877 Act by virtue of section 48.  Hogan J. therefore describes it as a common law right, albeit one explicitly preserved by statute.

63.       Further changes occurred after independence with the passage of the Courts of Justice Act, 1924, as amended in 1928. Section 94 of this Act removed the automatic entitlement to have certain claims (such as claims for liquidated sums, damages for breach of contract, claims to enforce a contract, or an action to recover land) tried by a civil jury.  This was subject to a discretion in cases where the court considered a jury trial "necessary or desirable".  In practice this meant for example that claims for damages in tort actions, such as for defamation or for negligence, retained an entitlement to a civil jury.

64.       The 1937 Constitution did not provide for any right to a jury in civil cases, confining the constitutional entitlement to trial by jury to non-minor criminal cases; see Article 38.5. Accordingly, as Charleton J. explains in para. 16 of DF, any entitlement to a jury in a civil case is purely statutory, albeit that this can probably be understood as including pre-existing common law entitlements which were preserved by section 48 of the 1877 Act.

65.       In 1971 the right to a jury in the Circuit Court for defamation was removed by section 6 of the Courts Act, 1971. Then in 1988 the right to a jury in personal injuries cases (save for claims for damages for personal injuries arising from false imprisonment or civil assault) was removed by section 1 of the Courts Act, 1988. Of note, the legislative provision in the 1988 Act provides that those actions (claims for damages for personal injuries) "shall not be tried with a jury".

66.       Of necessity, the discretion in Order 36, rule 5 of the 1986 RSC cannot therefore apply to such actions. To that extent, this reform in 1988 was different from the changes in the 1920s where the legislative provision removing the entitlement to a jury in certain common law claims had retained a discretion for the judge to direct a civil trial with a jury if the judge considered it to be "necessary or desirable for the proper trial of the action".

67.       This context is relevant to considering the intended scope and breadth of the discretion contained in Order 36, rule 5, particularly in the context of an application in respect of proceedings that contain claims in respect of which there was never an entitlement or practise that they be heard with a jury.

(ii)        Factors that may be relevant to the exercise of the discretion in Order 36, rule 5

68.       From Mr. Fox's perspective, the caselaw dealing with applications for a civil jury were referenced to underpin the submission that the starting point should be that the court looks at the substance of the claim. It was submitted that the substance of the claim is about vindication of the plaintiff's reputation through an award of damages which are assessed typically by a jury in the context of High Court defamation actions to reflect "community standards" and, in the written submissions on behalf of the plaintiff, it was contended that a jury would be best placed to "assess the gravity of this injustice".

69.       The defendants pointed to issues of practicality, convenience and cost. In particular, they indicated that where complex legal issues are likely to arise that a trial with a civil jury would be neither convenient nor desirable. In relation to these factors, the plaintiff also pointed to matters of convenience and submitted that these proceedings will not involve any accounting or expert evidence of significance (save for some expert medical and accounting evidence).

1. In the absence of authority directly addressing the exercise of discretion under Order 36, rule 5, it is appropriate to consider analogous jurisprudence concerning the suitability of jury trials in proceedings involving multiple causes of action, some of which are not amenable to jury determination. In Bradley v Maher [2009] IEHC 389, Clarke J. considered whether proceedings involving a defamation claim together with claims for injunctive relief and a counterclaim raising distinct legal issues should proceed with a jury. Although the case did not concern Order 36, rule 5, it is helpful because it addresses the difficulties arising where a jury is asked to determine only part of a case, as is proposed here.

71.       Clarke J. identified significant problems inherent in what he described as a "hybrid" trial, including the risk of duplication of evidence, the possibility that witnesses might need to be recalled for different purposes, and the difficulty of ensuring coherence between findings of fact made by a jury—without reasons—and findings required to be made by a judge in relation to the other claims. The governing consideration was whether such a procedure would be satisfactory and desirable having regard to the proper administration of justice.

72.       Those observations are helpful here as what is contemplated by the plaintiff's application is, in substance, a hybrid trial: with damages for alleged reputational and personal harm to be assessed by a jury, while significant legal issues—including the alleged unconstitutionality of section 7 of the Criminal Law (Rape) Act 1981 and threshold questions concerning the legal viability of the claims—would fall to be determined by the judge.

73.       The reasoning in Bradley illustrates why, in such circumstances, the practical and procedural difficulties of a divided trial may render the direction of a jury trial neither desirable nor appropriate. In addition, it can be seen that whether witnesses would have to be recalled or whether there was any risk of inconsistent findings of fact can have a bearing on this question of whether a trial with a jury should be directed.

(iii)       Miscellaneous legal principles relevant to the claim

74.       In the Supreme Court decision in Higgins v IAA [2023] 1 IR 65, Hogan J., albeit in a passage that is obiter, refers to the role of the law of defamation in relation to supporting the State's constitutional obligation under article 40.3.2 by its laws to vindicate and protect the good name of the citizen. This analysis only serves to emphasize the challenge and complexity of contending that the law of defamation is inadequate to protect a person's constitutional right to a good name. At para. 307 in Higgins, Hogan J. states:-

"as this court has frequently observed, the general law of defamation reflects a balance   of sometimes competing constitutional rights, namely, the right of free expression and    opinion on the one hand ( Article 40.6.1° (i)) and the right to a good name (Article       40.3.2°) on the other. In passing, I should say that I agree with MacMenamin J. inasmuch as he suggests that the law of defamation also serves the objective of securing             the dignity of the individual recognised in the Preamble to the Constitution".

75.       In addition, as Mr. O'Higgins, SC pointed out, there is established jurisprudence that a plaintiff should rely on existing torts in the first instance before seeking to make a claim under the Constitution. In the case of Clarke v. O'Gorman [2014] 3 IR 340 the Supreme Court held that it is only where it could be shown that the existing  law did not adequately protect the constitutional rights of the plaintiff that a separate claim for breach of constitutional rights could be invoked.  O'Donnell J. (as he then was) at page 359 of Clarke addresses this question in further detail where he states at paragraph 34:

"The intersection between claims for damages for breach constitutional rights and            claims in  tort was discussed in Hanrahan v. Merck Sharp & Dohme.  The effect of that    decision is that the existing torts and other causes of action known to common law are to be considered the method by which the State performs its obligation to vindicate the          constitutional rights of  the citizen. It is only therefore if it can be shown that the existing law does not adequately protect the constitutional rights of the citizen that             a separate claim for breach of constitutional rights can be invoked."

76.       These legal principles add further to the potential complexity of the claims made in these proceedings that bear considering in the context of this application.

V.        DECISION

77.       This is a novel application in respect of proceedings that contain claims that in themselves are, in many respects, novel. The parties agreed that there appears to be no authority where Order 36, rule 5 was sought to be invoked.  In Fulham, Barton J. describes the rule as being far from clear as giving a basis for directing a jury trial in a case claiming breach of constitutional rights, albeit he notes that the matter was not argued in that case; see para. 19  where he states as follows:-

" subject to the 1988 Act , while in all causes or matters where the parties are not entitled as of right to trial by jury the trial is to be by a judge sitting alone, the court is    nevertheless vested with a jurisdiction pursuant to Order 36 r. 5 of the Rules of the Superior Courts 1988, as amended, to order otherwise, a provision no doubt rooted in the 1877 Act and the Rules of Court made thereunder, though in the absence of             argument on the point it is far from clear on what basis the Court could now exercise       such jurisdiction to order a trial for breach of constitutional rights. In D.F. supra,         Charleton J., at para 11, commented on Rule 5 and considering the wording of Rule 7           doubted whether it was worthwhile retaining it due to what he considered to be its lack of utility."

78.       In addition, the claim itself proceeds on foot of causes of action seeking to vindicate the plaintiff's reputation and to challenge the decision to prosecute him but, in respect of which, the plaintiff accepts he has no claim in either defamation or for malicious prosecution.

79.       Furthermore, the plaintiff accepts that he does not have any entitlement as of right to a trial with a civil jury in respect of any aspect of the claims made in these proceedings.

80.       The high point of his application is that he says he is a public figure, a comedian, who claims that his reputation and career and his constitutional right to his good name were damaged by the alleged wrongs of the defendants, who are all public or statutory persons or bodies. He claims that he should not have been prosecuted, and that, once he was prosecuted, it was wrong that he was not afforded anonymity like the complainant. He points to the entitlement whereby, through defamation actions in the High Court, a person can achieve vindication for damage to their reputation by an assessment of damages by a jury and says that this is the most appropriate manner in which the court can ensure that his constitutional right to his good name is vindicated.

81.       In the context of a person who is publicly known and whose reputation was damaged in a public manner, he asserts that this tilts the balance in favour of the court exercising the apparent discretion in Order 36, rule 5 of the RSC to direct a trial with a jury as the most appropriate way to facilitate the vindication of his rights.

82.       It was not disputed by the defendants, for the purposes of this application at least, that Order 36, rule 5 of the RSC did, at least in theory, give the court a discretion to direct that this trial be set down before a judge sitting with a jury. The defendants were content to rely on the specifics of this case to contend that, assuming the discretion did apply, it should clearly not be exercised in a case like this.

83.       Nonetheless, some observations on the power that the court is invited to exercise are appropriate given the relative novelty of this application. The jurisprudence of the courts indicates that all legislative provisions should be interpreted in their context.  The caselaw, in particular Lennon, DF and Fulham, indicates the context in which the discretion in Order 36, rule 5 should be interpretated.

84.       The detail of this context is described above in Section IV(i) of this judgment. Since the mid-19 th century there has been a gradual erosion of the types of cases to which there is an entitlement to a jury in civil cases. Taking the mid-19 th century as the starting point, the type of claims to which there was an entitlement to a jury in civil actions were common law actions claiming damages. The jury had the role of deciding any disputed facts and assessing damages. There was no traditional role for a jury in a chancery action where, for example, either a declaration or an injunction might be sought. As the courts system has been reformed there has been a gradual erosion of the types of cases in which there is an entitlement to a jury in a civil case. Nonetheless, throughout this time the Rules governing the Superior Courts have retained the power that was included in the Rules in the wake of the 1877 Act, namely the apparently broad discretion contained in the 1986 RSC in Order 36, rule 5 that " All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the Court shall otherwise order."

85.       When the common law and chancery courts were fused by the 1877 Act the pre-existing entitlement to a jury in common law actions was preserved by section 48. As described above, the Rules of the Supreme Court (Ireland), 1891 provided for a discretion, in similar terms to that contained in Order 36, rule 5 for a court to direct a trial before a civil jury.

86.       The logic of retaining this power may have been to allow a judge, in the newly merged system after the 1877 Act, a discretion to direct that a claim that would in substance have been decided by a jury prior to the 1877 Act could still be so decided in appropriate cases.

87.       Such cases would, on this understanding, have therefore been cases that involved common law claims for damages. So, for example, as Hogan J. explains in Lennon at para 15, there was no question but that prior to the 1877 Act any party to defamation proceedings (a common law claim for damages) had the right to have that claim tried before a jury and this entitlement was not taken away by the 1877 Act by virtue of section 48.  Hogan J. therefore describes it as a common law right.

88.       Accordingly, while it was not disputed in this application that Order 36, rule 5 of the RSC did give the court a discretion to direct a trial with a civil jury in respect of these proceedings (and consequently the matter was not the subject of any detailed argument), there must be a significant doubt as to whether the ambit of Order 36, rule 5 could be interpretated to apply to a case such as this which is principally based on alleged breaches of constitutional rights and includes a claim for a declaration of unconstitutionality in respect of a statutory provision, neither of which could have existed even as a twinkle in the eye of the most imaginative 19 th century litigant or their lawyers. As Barton J. states in Fulham at para. 18 referring back to Charleton J. in DF:-

" Without accepting that the torts claimed in D.F. for breach of constitutional rights to      liberty, bodily integrity and privacy existed as a matter of law, Charleton J., having           observed that any entitlement to a jury trial in civil matters was entirely statutory found         that no such entitlement exists for constitutional torts as they could not have been        covered by the statutory entitlement to jury trial for civil wrongs preserved by the 1877            Act, such torts being unknown to the law prior to 1937."

89.       Consequently, the contention that the 1986 RSC intended, by Order 36, rule 5, to broaden the range of cases that could be heard be a civil jury (to include claims for damages for breach of constitutional rights) must accordingly be significantly in doubt.  These observations however do not form the basis of the decision in this case.

90.       Assuming, notwithstanding the foregoing, that there is in principle a discretion to direct that these proceedings can be set down for trial before a judge sitting with a jury, it is appropriate to consider the type of factors that would appear to be relevant to the exercise of that discretion.

91.       I am satisfied that in cases where there is no statutory entitlement to a jury in civil proceedings that any exercise of the discretion contained in Order 36, rule 5 would be the exception and that the default position is that such claims should proceed for trial before a judge sitting alone.  It is necessary therefore that an applicant seeking a trial before a jury relying on Order 36, rule 5 should be able to point to the necessary exceptional circumstances to merit the exercise of the discretion contained in the rule. Each case where the discretion potentially applies will depend on its own particular circumstances.  While there is no exhaustive list of factors that may be relevant, based on the submissions and the matters that were considered as relevant in Bradley v Maher, the following factors should be considered:-

(i)         the nature and substance of the claims made in the proceedings;

(ii)        whether the assessment of damages in the particular case is, in general,                              appropriate to the role of a jury;

(iii)       even if the assessment of damages could be carried out by a jury, whether or not                the complexity of the likely evidence in relation to the damages makes the claim                     unsuitable for assessment by a jury;

(iv)       whether the proceedings include claims, for example for injunctions or                               declarations, that cannot be determined by a jury;

(v)        whether there is a risk of conflicting findings of fact or similar evidence being                   required for a determination of the different claims;

(vi)       whether the case is likely to raise legally complex issues that will cause delay                    or require rulings during the trial;

(vii)      the impact of directing a trial with a jury on the cost and likely duration of the                   proceedings; and

(viii)     whether the claims contain issues or matters of wider public importance that                      make a jury decision, which will not be accompanied by reasons, less desirable.

92.       Taking each of these factors in turn, I am satisfied that overall when these factors are considered cumulatively, rather than in isolation, they point firmly against the exercise of the discretion sought and it is not desirable or appropriate to direct that these proceedings be set down for hearing before a judge sitting with a jury.

(i)         The nature and substance of the claims made in the proceedings

93.       The plaintiff asserts, through his written submissions, that the case is one of "constitutional importance" and that the community "through a jury" should have a voice on these matters. The specific claims include a claim for damages for reckless infliction of emotional distress and for psychological harm by virtue of what is claimed to be a reckless and/or irrational decision to prosecute him and the subsequent loss of anonymity.  They also include a claim for damages for a number of alleged breaches of the plaintiff's constitutional rights and in particular a claim for damages for the alleged damage to the plaintiff's reputation from what was said in court and then reported, due to a lack of anonymity.  There is also a claim for a declaration that section 7 of the Criminal Law (Rape) Act, 1981 is unconstitutional as it provided unequally for anonymity as between the complainant and the plaintiff.

94.       All of these claims have significant legal complexity.  For starters, there are existing torts in the common law (defamation and malicious prosecution) that the plaintiff does not rely on and accepts he cannot rely on.  There are also, as described above, a number of technical pleas on the part of the defendants, including pleas about the plaintiff's claim being statute barred.

95.       The overall picture that emerges from an analysis of the substance of the various claims made in these proceedings is that this case appears unsuitable for a trial with a jury.  There are multiple claims, each with significant complexity.

(ii)        Whether the assessment of damages in the particular case is, in general, appropriate     to the role of a jury

96.       A claim for damages for damage to reputation in a defamation action in the High Court is typically assessed by a jury and this aspect is probably the plaintiff's best point in support of the application.

97.       However, the plaintiff also claims damages for infliction of emotional distress and psychological harm, together with loss of earnings as a comedian, and he claims that this in part arose from the reporting of the case (i.e. not just the decision to prosecute him) which was due to the decision of the District Court judge pursuant to section 7 of the 1981 Act, which he challenges. A claim for damages for the effect of an unconstitutional provision is not something that would typically be done by a jury.

(iii)       Even if the assessment of damages could be carried out by a jury, whether or not the     complexity of the likely evidence in relation to the damages makes the claim unsuitable for assessment by a jury

98.       Here, the likely evidence would not appear to be too complex. The nature of this evidence would appear to be relatively straight forward accounting evidence and expert medical evidence.

99.       What may be more challenging, is disentangling which damage arose from the decision to prosecute Mr. Fox and which was caused by the publicity due to the lack of anonymity. This problem arises irrespective of whether the plaintiff succeeds in both parts of his claim, or only one.

(iv)       Whether the proceedings include claims, for example for injunctions or declarations, that cannot be determined by a jury

100.     These proceedings include a claim for a declaration about the constitutionality of section 7 of the 1981 Act which the plaintiff accepts cannot be determined by a jury. In addition these proceedings involve multiple legal issues that the judge would have to determine around the statute of limitations, around the existing torts of defamation and malicious prosecution, and around the potential legal liability of the DPP, all of which would need to be determined before it could be decided what issues, and on what terms, would go to a jury.

(v)        Whether there is a risk of conflicting findings of fact or similar evidence being               required for a determination of the different claims

101.     There would be a risk of serious confusion in this regard in this case. I agree with the submission of Mr. O'Higgins, SC that the plaintiff's claim for damages for the impact of the events complained of on his reputation is intertwined with his claim about the constitutionality of section 7. In other words, had Mr. Fox been given the benefit of the anonymity provided to the complainant (as he claims he should have been) then it is unlikely he would have suffered from the media intrusion and consequential impact on his mental health, reputation and career of which he complains. This appears to be separate, at least to a degree, to Mr. Fox's claim for distress suffered from the decision to prosecute him.  Nonetheless there appears to be some inevitable overlap, as his solicitor in the affidavit grounding this application states that both the decision to prosecute Mr. Fox and the public nature of the trial caused him distress; see para.s 24-26.

102.     Accordingly, in considering the challenge to the constitutionality of section 7 the factual context would need to be determined and the judge would have to decide all conflicts of fact relevant to that issue.  This may include the dispute about what was said in Court as the pleadings indicate a dispute about this. It may also include having to determine what was known to Mr. Fox at the time of the preliminary hearing as there is a complete dispute about that on the affidavits in this application. It is difficult to see how some of those factual issues might not also be relevant to the plaintiff's claim that the decision to prosecute him was reckless.

103.     In circumstances where the judge would have to give a reasoned decision about any findings of fact made relevant to the constitutionality of section 7, it is difficult to see how that would be accommodated in the context of the jury. Even if the trial could be organised so that the jury's decisions on facts were made first, the judge (and indeed the parties) would not know what reasons the jury had for making any findings of fact.

(vi)       Whether the case is likely to raise legally complex issues that will cause delay or            require rulings during the trial

104.     This is one of the strongest factors militating against a trial with a jury in this case. There are a number of novel issues in this case. The plaintiff urges that the substance of his claim is to vindicate his reputation and he submits that he did not sue in defamation because of section 17(2) of the Defamation Act, 2009 which provides that statements in court have the benefit of absolute privilege. Consequently, he seeks to rely on an alleged breach of his constitutional right to his good name, sidestepping as it were, the law of defamation. This is the aspect of his claim that he says makes it most suitable and appropriate for the Court to direct that this action be set down before a judge sitting with a jury.  Equally he does not allege that the State Defendants are guilty of the tort of malicious prosecution, and Mr. McGrory, SC accepted he could not establish that the decision to prosecute Mr. Fox met the requirements of that tort. Rather, Mr. McGrory, SC contended that Mr. Fox's claim was that the decision to prosecute was reckless and/or irrational. The defendants dispute that this characterisation is sufficient in principle to ground an attack on a decision to prosecute. Accordingly, the case has, to put it mildly, significant novelty.  The precise ambit of these claims and the evidence that may be relevant or necessary to adduce in relation to them is beyond the scope of this application.  However, based on the matters raised in the defences of the DPP and the State Defendants, it seems inevitable that legal issues of some significance are likely to arise at the trial and require to be determined.

105.     Specifically, the ambit of the tort of defamation and the potential legal liability of the DPP in the context of a decision to prosecute are of significant public importance and it is not convenient or desirable that a trial judge might have to make a ruling during the trial on these matters. In that regard, therefore, I agree with the submission of Mr. McKenna, BL that the legal arguments around where the boundary line should be drawn in respect of a challenge to a decision of the DPP to initiate a prosecution was not a matter suitable for a trial which would involve a jury.

106.     There is also a complexity to the claim of unconstitutionality concerning section 7 of the 1981 Act, not least because the plaintiff did not appeal or seek to challenge the decision of the district judge at the time.

107.     A trial where a jury has to be sent out of the court room for extended periods while legal issues are argued out is not ideal.  It is not inconceivable, that in the ordinary course, some of these legal issues, due to their importance and novelty, would merit a written decision.

108.     It is not desirable that a trial should proceed in that fashion.

(vii)      The impact of directing a trial with a jury on the cost and likely duration of the proceedings

109.     It is likely that a jury trial in a case of this sort, where there are elements that the plaintiff accepts cannot be decided by the jury, would be longer and consequently more expensive than if the matter proceeded without a jury.  Sending a jury out and calling a jury back takes time. What is happening has to be explained. Experience indicates that this is inevitably so.

110.     Court time is a limited resource and an extended trial impacts on other litigants. The likelihood of the trial being more protracted is therefore not desirable and, in this case, is a factor that militates against making the order sought.

(viii)     Whether the claims contain issues that make a jury decision, which will not be   accompanied by reasons, less desirable.

111.     The plaintiff's proceedings make a number of novel and serious claims.  They relate to the constitutionality of a piece of legislation, to the ambit of legal review of decisions by the DPP to prosecute, and to the potential of invoking the Constitution as an alternative to the law of defamation to vindicate a person's reputation.

112.     It is highly undesirable that the law might evolve in any of these areas in a manner which might be unclear or open to undue speculation. Findings of fact by a jury are not accompanied by reasons.  Any assessment of damages by a jury is also unaccompanied by reasons. This is another factor that makes directing a jury trial undesirable in this case.

VI.       CONCLUSION AND FORM OF ORDER

113.     As explained above, when the relevant factors are considered cumulatively they point firmly against the exercise of the discretion sought and I am satisfied that it is not desirable or appropriate to direct that these proceedings be set down for hearing before a judge sitting with a jury.

114.     This conclusion is not a rejection of the proposition that civil juries have traditionally played an important role in the assessment of public reputation, but rather reflects the conclusion I have reached about the incompatibility of the legal architecture of this case and a jury trial.

115.     Accordingly, for the foregoing reasons, I am satisfied that, assuming Order 36 rule 5 provides for a discretion to direct that these proceedings be set down before a judge sitting with a jury, that it would not be appropriate to so direct in this case.

116.     I propose to therefore refuse the application and I will hear from the parties as to any other orders required and as to costs.

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