DISGRACED Independent TD Michael Lowry has lost his legal battle to sue veteran Irish Independent journalist Sam Smyth for libel.
The high-profile bid was thwarted yesterday by the President of the High Court, Mr Justice Nicholas Kearns, who observed that the controversial North Tipperary TD had never denied that he was a tax cheat.
The libel battle marked a new low between Mr Lowry and Mr Smyth, the only Irish member of the renowned International Consortium of Investigative Journalists (ICIJ), whose home and other assets were at risk in the event of a successful lawsuit by Mr Lowry.
This is because Mr Lowry chose to pursue Mr Smyth in a personal capacity rather than suing the Irish Independent and TV3, where the alleged libels were made.
Mr Lowry sued Mr Smyth under new laws passed in 2009, which allow a judge to declare a defamation has occurred, without a libel trial, if a defendant -- in this case Mr Smyth -- has no defence that is reasonably likely to succeed.
The new law was designed to rid the courts of vexatious and abusive libel claims.
But Mr Justice Kearns ruled that far from having no reasonable defence, Mr Smyth had, on the contrary, "a good arguable defence" in respect of both of the alleged libels, which Mr Lowry claimed wrongly meant he was a thief and corrupt politician.
Because he failed to get past the "declaratory post", Mr Lowry can not now reinstate the libel action against Mr Smyth. He has also been ordered to pay Mr Smyth's legal costs.
Speaking afterwards, Mr Smyth said the decision represented "a good day for journalism". Mr Lowry was not in court.
The first alleged defamatory matter related to comments by Mr Smyth on June 24, 2010, on 'Tonight with Vincent Browne' on TV3 (when discussing the Moriarty tribunal) that Mr Lowry was "caught" with "his hand in the till". The second was an article by Mr Smyth in the Irish Independent on May 27, 2010, concerning the tribunal following a "money trail" into property transactions to which it felt Mr Lowry was linked.
Mr Smyth denied comments by him during the TV3 show meant Mr Lowry was a thief but said he did believe the politician was a liar and tax cheat.
Yesterday's ruling arose out of an appeal by Mr Lowry to the High Court against the refusal of Circuit Court Judge Margaret Heneghan to grant him a declaratory order.
Mr Justice Kearns yesterday accepted Mr Lowry's arguments that evidence given to a tribunal, or a finding of a tribunal, has no evidential value in other proceedings, including defamation proceedings, and therefore Mr Smyth was not entitled to rely as "evidence" in any defence on reports and findings of the McCracken and Moriarty Tribunals concerning Mr Lowry.
A "roadmap" was disclosed in such reports, which indicated a way for Mr Smyth to marshal a defence without being forced to rely on the tribunals' findings, he said.
Mr Smyth was entitled to argue that the words "hand in till" may be taken as referring to tax fraud and bills inappropriately picked up for the benefit of Mr Lowry by business interests.