Members will be aware that we had been hoping that the practice of retailers being subjected to “shakedowns ” by unscrupulous lawyers and their clients would have been addressed when the previous Minister for Justice indicated her willingness to apply a robust screening process to weed out frivolous and vexatious claims. Those claiming to have been defamed would need to show a serious harm had been committed.
When her Bill went to the Committee for pre legislative scrutiny, it was attacked by those within the legal profession for restricting the rights of people to access to courts to vindicate their name. The Attorney General and the current Minister for Justice had suggested that there could not be a provision allowing for protection against transient retail defamation other than by way of availing of the defence of qualified privilege.
During the course of Committee and Report Stage on Wednesday, the Minister called upon retailers to use this defence, apparently blissfully unaware of the extent our insurers inclination or our pockets will stretch. Even when we win our case , either at District or Circuit Court level, the lawyers tactic of appealing or threatening to appeal to higher courts places very significant strains on resolve, and the issue of costs are left to each side to meet their own.
The Minister went into a full Walter Mitty fantasy mode when he declared
” there is no point in the Oireachtas drafting defences, putting them into legislation and enacting them if people for whose benefit they have been enacted decide not to use them and take the easy option out by saying they have been advised that they should just pay over €5000 to see off a claim. They should fight claims. Part of the reason claims are encouraged is when a tendency develops not to contest claims. If people contest claims that are not valid, then the message will go out to litigants that there is no point in taking those claims because defendants have the statutory power to stand up to them. People need to avail of the statutory power that, ultimately, we are going to give them.
I am happy to discuss it with any retailers”.
In the meantime, please enquire from your broker or insurance company if your policy has cover for false arrest and defamation included as we are aware that some insurance companies have dropped one or both of these from some shop policies in recent times.
