Tuesday 27 September 2016

Solicitor wrongly identified as €52m fraudster lawyer Thomas Byrne on TV3 awarded €140k

Published 12/11/2015 | 12:27

Former solicitor Thomas Byrne
Former solicitor Thomas Byrne

A SOLICITOR has been awarded €140,000 in High Court damages against TV3 over a broadcast which mistakenly identified him as another lawyer who was before a court on criminal charges.

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Dublin-based David Christie sued the station after he was wrongly identified in an evening news report on November 11, 2013, as solicitor Thomas Byrne who was later jailed for 12 years for fraud.

Ms Justice Iseult O'Malley said words saying Mr Byrne was accused of 50 counts of theft and forgery involving €52m were unfortunately accompanied solely by footage of Mr Christie making his way, on his own, to the Criminal Courts of Justice.

Mr Christie, who represented Mr Byrne in that case, demanded an apology and compensation.

TV3 said what had happened was "an innocent mistake due to an editing error" and sincere apologies were offered.    It also offered to broadcast a clarification and apology but disputed that the piece was grossly and seriously defamatory.  

It also said because Thomas Byrne was well known, anyone who recognised Mr Christie would be well aware he was David Christie and not Thomas Byrne.

Mr Christie rejected TV3's proposals and the station went ahead and broadcast and apology on November 15, 2013.

Mr Christie sued and TV3 sought to have the matter dealt with under the 2009 Defamation Act whereby it would make an offer of amends which could be agreed between the parties or determined by a court.

The matter went before Ms Justice O'Malley for determination.

Mr Christie told the court of how he had told the cameraman on the day he was being filmed that his client (Mr Byrne) was not with him that day.

When he saw the broadcast, he was shocked. 

The next day, as he left court with Mr Byrne, a man spat in Mr Christie's face calling him "a fucking scumbag" and "a thief", he said.

He began receiving phone calls from former clients wanting to know if he had returned their deeds to the bank and similar questions. 

On one occasion, while socialising with some colleagues, a man approached him, grabbed him by his jacket and invited him outside for a fight, addressing him as a thief.

On another occasion while out with his wife, a man said to him "I thought you were locked up" before throwing a pint over Mr Christie's coat.

He and his wife stopped going out for dinner because people stared at them, he said.

He thought TV3's offer of an apology and a €1,000 donation to charity was insulting and belittled his position as a solicitor.

TV3, which did not put in a defence but cross-examined Mr Christie in the High Court, suggested there was "a downside for lawyers representing unpopular clients" in that the public do not always distinguish between the client and the lawyer.  Mr Christie replied that could be true but he did not accept it made what happened right.

Ms Justice O'Malley, in her judgment, said while it was unclear whether TV3 maintained the position it had taken up in correspondence that the broadcast was not defamatory, it seemed implicit from the station's submissions that the court would find damage had been done to Mr Christie's reputation.

In determining the appropriate sum to award, she took into account that TV3 was entitled to substantial mitigation of damages as an unqualified offer of amends had been made.

She also took into account a proposal to re-broadcast the apology.

The allegation against Mr Christie was serious and put at risk the goodwill built up by his practice.

However, she did not find his practice lost business as a result, not least because Mr Christie had told the court honestly that the fall-off in business may have been because of economic conditions generally.

She took into account Mr Christie was subjected to abuse he described in public places which had previously not happened to him.

What happened to him went beyond the alleged tendency of members of the public to identify lawyers with their clients, she said.

If it occurs, it is to be deprecated, she said.   Every person, no matter how unpopular, is entitled to legal representation, she said.

She did not accept the argument that the viewing population could be divided between those who knew Mr Christie and  those who followed the Byrne trial and knew what he looked like.

It was not possible for a judge to replicate the decision-making process of 12 jurors if the case went to trial before a jury, she said.

However, in the hypothetical situation of a fully contested case, not before a jury, with no mitigating aspects, she would be inclined to award in the region of €200,000.

Taking into account the offer of amends and apology, she considered the appropriate mitigation in this case to be around one-third.  She therefore awarded €140,000.

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