Time will tell if defamation triumph against RTÉ was a Pyrrhic victory

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Shane Phelan Twitter Email

March 01 2018 02:30 AM

Sinn Féin political manager and former IRA prisoner Nicky Kehoe believes his good name was vindicated by the High Court jury finding in his favour.

But his triumph over RTÉ earlier this week was not without complications and very soon he will learn if the victory in Court 25 was a Pyrrhic one.

Media organisations are quick to argue that the dice is loaded against them when it comes to Ireland's libel regime.

This is undoubtedly true, but there are also penalties for plaintiffs who over-reach when they sue for defamation.

The Courts Acts of 1981 and 1991 contain provisions which allow judges to severely penalise claimants who seek High Court damages, but end up being awarded a sum they could have secured in a lower court.

The High Court has jurisdiction to make awards of €75,000 and above and, in his closing speech last week, Mr Kehoe's counsel Declan Doyle SC urged jurors to award a very significant amount of damages.

Ultimately, while the jury found Mr Kehoe had been defamed, it elected to award him just €10,000, the lowest sum of damages in a defamation case in modern times. And because RTÉ was only deemed to be 35pc at fault, the sum won by Mr Kehoe was smaller still, at just €3,500.

But the real sting in the tail may come when the issue of who pays the legal costs of the trial is decided. Despite winning, the low level of the award has a significant bearing on the share Mr Kehoe must pay. Normally in civil proceedings, the victor has their costs paid by the other side. But the Courts Acts mean Mr Kehoe could be dealt a double whammy.

Firstly, unless the judge grants a special certificate, Mr Kehoe will not be able to recover more than €3,500 from RTÉ towards his own legal costs. This would leave him having to pay the vast bulk of his own lawyer's fees.

Secondly, the judge can order him to pay RTÉ the difference between what it would have cost the broadcaster to defend the case in the Circuit Court and what it has cost in the High Court.

Mr Kehoe said after the verdict that the case was not about money, but about his good name.

It is unfortunate then that he did not bring his action under Section 28 of the Defamation Act 2009. This allows a plaintiff to seek a "declaratory order" in the Circuit Court that a statement was false and defamatory.

The legislation allows the court to direct a media outlet to publish a correction and/or to desist from publishing the allegation in future. No damages can be awarded, but there is the advantage that Circuit Court legal costs are a fraction of what they are in the High Court.

Had he taken this option, he may well have won his case without the added headache of a potentially significant legal bill.