Monday 21 October 2019

Denis O'Brien loses High Court defamation action against Sunday Business Post, legal costs could run to €1m

Businessman Denis O'Brien pictured at the Four Courts yesterday. Photo: Collins Courts
Businessman Denis O'Brien pictured at the Four Courts yesterday. Photo: Collins Courts

Tim Healy and Kevin Doyle

Denis O’Brien has lost his High Court action alleging he was defamed in articles published in the Sunday Business Post.

The jury, by a majority, dismissed the case this afternoon.

The total legal costs of the case, which ran for 17 days, could run to €1m and Taoiseach Leo Varadkar said today his government is carrying out a review of the situation.

"Defamation laws in Ireland do seem to be more restrictive than in other countries," he said, when asked if Irish defamation laws are too restricted.

"We have to balance the need for free speech and free press, and we also need to protect people’s privacy and people’s reputations.

"Where media organisations or journalists do publish things that are untrue or damaging, it can really hurt people. We need to get that balance right," Mr Varadkar told reporters in Belfast. 

Mr O’Brien, who had attended each day of the case up to the 17th day today, was not in court for the verdict.

The eight men and three women began deliberations about 12.45pm on Thursday and the foreman told the judge about 12.40pm on Friday, after some five hours deliberation, they could not reach a unanimous decision on some of the nine questions before them.

They had gone through the all of the questions twice, the foreman said.

In those circumstances, a majority decision was open to them, Mr Justice Bernard Barton told them. That meant at least nine of them must agree on the answers to the questions and it must be the same nine, or ten, who agree on each answer.

The jury then resumed considering their verdict and returned to court just after 4pm.

Mr O’Brien sued Post Publications Ltd, publisher of the SBP, over articles published over six pages in the newspaper of March 15th 2015 in which Mr O'Brien was named as amongst the 22 biggest borrowers from Irish banks in 2008.

Their focus was a confidential Price WaterhouseCoopers (PwC) report given to the government in November 2008 which looked at the exposure of Ireland’s banks in 2008.

Journalist Tom Lyons got a copy of the report from a source in early 2015 and shredded it shortly after the articles were published to protect the source.

Mr O'Brien claimed the articles, including articles headlined “22 men and €26 billion” and “The Gang of 22” wrongly meant he was among a “gang” of 22 borrowers responsible for the destruction of the Irish banking system and that they defamed him and injured his reputation. He also alleged malicious publication and, in that context, sought punitive damages.

The defendant denied the words meant what he alleged, denied defamation and malicious publication, and pleaded "fair and reasonable publication on a matter of public interest".

The jury heard evidence from Mr O’Brien, Mr Lyons and former SBP editor Ian Kehoe during the 17 day case. 

The jury had nine questions to consider.

They found (1) the articles did not mean Mr O’Brien, as one of 22 borrowers, was among those borrowers most to blame for the destruction of the Irish banking system and the subsequent bail out;  and (2) was not a recipient of cheap and easy money which was in some way related to improper influence with bankers, politicians and civil servants.

They also found  (3) the articles did not mean, as a result of what was said about Mr O’Brien’s borrowings, the PwC report was one which he wished to keep secret or top secret and had been suppressed.

They found (4) the articles meant the story of Mr O’Brien’s borrowings and the amount thereof was telling and disturbing but that was not defamatory.

Question 5 and 6 asked whether the articles meant Mr O’Brien was “massively overstretched” and “faced huge financial pressure” in November 2008. The jury found they did but that was not defamatory.

Given those answers, Mr Justice Barton said the case was dismissed with an order for costs against Mr O’Brien.

Mr O'Brien was represented by two senior counsel - Paul O'Higgins and Luán Ó Braonáin and junior counsel Marcus Dowling, instructed by Meagher Solicitors. Post Publications was represented by Michael McDowell SC, with junior counsel Shane English, instructed by John Doyle, of Dillon Eustace Solicitors.  

The Sunday Business Post released a statement this afternoon, saying;

"The Sunday Business Post welcomes the verdict of the jury in the High Court today to reject a claim of defamation made against the paper by Mr. Denis O’Brien in respect of the paper’s coverage in 2015 of a matter of significant public interest.

"While the article which led to this action predated the purchase of the Sunday Business Post by Kilcullen Capital Partners, the issues raised are of critical importance for the media in Ireland and therefore the new owners were happy to support the paper’s defence of this claim.

"CEO Siobhán Lennon said “The Sunday Business Post prides itself on its independence and objectivity. Now more than ever a strong, independent and objective media is essential to a functioning democracy.”

“"The case highlights the extent to which Ireland’s defamation laws place significant constraints on all Irish media outlets in their efforts to provide robust, objective and fair scrutiny of the stories that matter to Irish democracy. We believe it is time for action to reform the relevant defamation laws and to ensure that the media are liberated from unreasonable pressures which currently exist”.

"Lennon said she would like to thank Michael McDowell SC, Shane English BL, John Doyle of Dillon Eustace, Tom Lyons former business editor and Ian Kehoe former editor of the paper for their time and robust defence of this case."

Separately, the Supreme Court will rule next Tuesday in Galway on Mr O’Brien’s appeal over the rejection of his challenge to statements made in the Dail about his banking affairs.

That judgment was to be delivered last Wednesday but, at the request of O’Brien’s lawyers last Monday, the Supreme Court agreed to defer it because of the defamation case.

The total legal costs of the case, which ran for 17 days, could run to €1m. Mr O'Brien was represented by two senior counsel - Paul O'Higgins and Luán Ó Braonáin and junior counsel Marcus Dowling, instructed by Meagher Solicitors. Post Publications was represented by Michael McDowell SC, with junior counsel Shane English, instructed by John Doyle, of Dillon Eustace Solicitors. 

Online Editors

Editor's Choice

Also in Irish News