independent

Sunday 20 April 2014

Gallagher brings Frontline to court

Former candidate wants programme declared unfair as RTE gags Pat Kenny over 'tweetgate'

Presidential election candidate Sean Gallagher has issued legal proceedings against RTE arising out of the controversial The Frontline Presidential Debate, the Sunday Independent can reveal.





It has also emerged that RTE last September asked the presenter of The Frontline, Pat Kenny, not to repeat and to refrain from making further comments about Mr Gallagher, which have been described by the candidate's lawyer as "provocative".



Paul Tweed of the solicitors firm Johnsons last week also said: "These proceedings will be vigorously prosecuted in order to bring this matter to a conclusion, once and for all."



In a significant development, Mr Gallagher is to ask the High Court for a declaration that The Frontline debate, broadcast on October 24, 2011, was allegedly neither objective nor impartial nor fair to his interests.



He is to also ask the High Court for a declaration that the broadcast was allegedly "deliberately and unfairly" edited, presented and directed by RTE.



Yesterday, RTE confirmed that a plenary summons had been received on Friday and said that there would be "no further comment for now".



RTE is required to enter an appearance in the High Court within eight days.



However, it is understood that RTE, in correspondence with Mr Gallagher in November, has rejected the substance of his claims and is expected to contest the High Court proceedings.



The Sunday Independent understands that Mr Gallagher is to seek damages for alleged breach of statutory duty, alleged negligence and breach of duty and alleged misfeasance in public office.



He is also to seek aggravated and/or exemplary damages arising out of comments made by Mr Kenny on September 3 last to the effect that Mr Gallagher should "get over tweetgate" and get back to "what he was supposed to be good at".



In comments which were published in the Irish Independent, Mr Kenny also represented that he and his staff had been "completely vindicated" by the Broadcasting Authority of Ireland (BAI).



The Sunday Independent has now learned that RTE wrote to Mr Kenny shortly afterwards to ask that he not repeat those comments and to refrain from making further comment.



It is understood that Mr Gallagher is to seek a discovery order against RTE after which, if granted, he reserves the right to furnish further particulars.



While the scope of such a discovery order is unknown at this stage, last March Mr Gallagher suggested that an investigation into the broadcast should include full discovery of all communications:



* Between members of the production team, including Pat Kenny;



* Within RTE regarding The Frontline programme;



* Between RTE and members of the public, with particular reference to how audience members were selected;



* Between RTE and audience members in the period leading up to, and following, the programme;



* Between RTE and campaign teams, candidates and parties regarding the debate programme.



In these legal proceedings, Johnsons has instructed senior counsel John Rogers, a former Attorney General associated with the Labour Party, and Jim O'Callaghan, a brother of RTE broadcaster Miriam O'Callaghan, wife of Steve Carson, director of programmes at RTE.



Mr Carson was a member of the team that conducted an editorial review of The Frontline debate programme. Published in November, that review identified serious editorial failings but concluded that the mistakes made were "not the result of bias or partiality".



In March last year, the Broadcasting Compliance Committee of the BAI deemed the broadcast of a 'fake tweet' and its re-broadcast the following day on the Today With Pat Kenny radio programme, without clarification of its provenance, to be unfair to Mr Gallagher.



Last week, Mr Tweed of Johnsons told the Sunday Independent: "In the absence of a satisfactory response to a detailed letter of claim, on the instructions of Sean Gallagher, I am arranging to issue legal proceedings against RTE on a number of grounds, including breach of their duty of care, negligence and breach of statutory duty.



"My client will be seeking a declaration from the court that the RTE Frontline Presidential Debate broadcast on October 24, 2011, was unfair and seriously damaged his electoral prospects.



"My client believes that he has been left with no alternative but to seek the assistance of the court, given RTE's persistent refusal to offer any adequate or appropriate redress for what was the totally unacceptable conduct by them of The Frontline broadcast, and which has had dramatic and extremely serious consequences for my client.



"Furthermore, RTE had taken the extraordinary decision not to broadcast a corrective tweet received during the course of the debate from the Official Martin McGuinness Campaign Account, which would have set the record straight while the programme was still live on air.



"The recently published report arising from the internal review regarding the offending broadcast, and the publication of provocative comments by the programme's presenter, have compounded my client's resolve to seek appropriate redress in the High Court."

Sunday Independent

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