Sunday 20 October 2019

O'Brien loses defamation action against the 'Sunday Business Post'

Former ‘Sunday Business Post’ journalist Tom Lyons (left of picture) and editor Ian Kehoe (right of picture) speaking outside court. Photo: Collins
Former ‘Sunday Business Post’ journalist Tom Lyons (left of picture) and editor Ian Kehoe (right of picture) speaking outside court. Photo: Collins
Denis O'Brien. Picture: Collins

Tim Healy and Kevin Doyle

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

The total legal costs of the case, which ran for 17 days, could run to €1m.

The eight men and three women of the jury told the judge at about 12.40pm, after some five hours' deliberation, they could not reach a unanimous decision on some of the nine questions before them.

In those circumstances, a majority decision was open to them, Mr Justice Bernard Barton said. The jury resumed deliberations and returned to court just after 4pm.

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

Their focus was a confidential PwC report given to the Government in November 2008 which looked at exposure of Ireland's banks in 2008.

Journalist Tom Lyons got a copy of the report in early 2015 and later shredded it to protect the source.

Mr O'Brien claimed the articles, including headlines '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 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 'Post' released a statement afterwards. "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," it said.

Taoiseach Leo Varadkar said his Government is carrying out a review. "Defamation laws in Ireland do seem to be more restrictive than in other countries," he said, when asked if Irish defamation laws are too restrictive.

"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.

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 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.

Questions 5 and 6 asked if 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, instructed by Meagher Solicitors. Post Publications was represented by Michael McDowell SC, instructed by John Doyle, of Dillon Eustace Solicitors.

Irish Independent

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