Saturday 24 August 2019

Liam Collins: O'Brien turned down right of reply and said Press Council 'has no teeth'

The media mogul, who is suing for libel, spent an eventful few days in the witness box last week

Liam Collins

Liam Collins

Telecommunications billionaire Denis O'Brien has the air of someone who has become comfortably familiar with the witness box.

He does not even seem perplexed when his libel action against the Irish Daily Mail over events in Haiti in the aftermath of the earthquake in 2010 turns into a "re-run" of the Moriarty tribunal, an examination of where he pays his taxes, and whether or not he was not Charlie Bird's "lapdog".

Holding forth from the witness box, the tycoon smiles thinly when answering one of his barristers, Paul O'Higgins SC, chews the stem of his thick black glasses, and isn't afraid to strike back during the inquisition of Oisin Quinn SC.

The not-so-secret billionaire also bobbed his head from side to side to illustrate how he wasn't "following Charlie Bird around like a lapdog" like other idiots who try to get in a camera shot at news events.

And at one stage he gets into a bit of banter with Mr Quinn and laughs out loud at his own witticism.

"This may be amusing to you, but it is taking up time," admonished Judge Elizabeth Dunne who rules a no-nonsense courtroom.

The genesis of this libel trial – O'Brien, Irish Daily Mail (and others), which ran for three days last week and resumes on Tuesday – is an article written by the journalist Paul Drury and headlined: 'Moriarty's about to report. No wonder O'Brien acting the saint in stricken Haiti'.

Tanned and expensively tailored, and carrying a yellow folder under his oxter, Mr O'Brien has all the self-confidence of the "multi-millionaire" described in this disputed article or "multi-billionaire" as the Mail's barrister Oisin Quinn puts it.

The disputed article was a "news piece" and has "11 or 12" serious factual errors Mr O'Brien maintained; lawyers for the newspaper argued that it wasn't news, it was opinion, and the writer was entitled to express his opinion.

During his time in the witness box Mr O'Brien, the biggest shareholder in Independent News & Media (INM), agreed it was right that one can be free to express an opinion. But, he said, only if they do not libel someone. It was put to him that he would appreciate it was in the public interest that newspapers should support journalists who were prepared to say critical things about powerful people. Mr O'Brien replied that while he was a shareholder in INM, he did not control it, though he does control Today FM and Newstalk. He disagreed that he could have dealt with his case over the Mail article through a 'right of reply', which he was offered, or through the Press Council. "Everybody knows the Press Council has no teeth," he said.

The case opened with the dramatic events as Haiti descended into chaos in the hours after the earthquake on January 12, 2010.

Mr O'Brien then spent the first three days of the trial in the witness box defending his reputation from a barrage of questions about how he acquired his wealth and how he now holds on to it.

"You are re-running the tribunal this morning to blacken me," Mr O'Brien told Mr Quinn. "You gave all the details of the tribunal. It was chaired by a judge and went on for 15 years. The Magdalene inquiry cost €11,000. In the Moriarty tribunal there was suppression of evidence and a low threshold of proof. You are trying to go through the tribunal to prove the headline."

He added: "There is no evidence or witnesses who said that I gave money to Michael Lowry or that I had a corrupt relationship with Michael Lowry."

However, later in the week Mr O'Brien agreed that the "core" finding of the report was that he had given large amounts of money to Mr Lowry, then minister for communications, when the commercial mobile licence was awarded to his Esat Digiphone consortium in 1995.

"But unlike a court of law this was based on hearsay and there were no documents to show I had given money to Mr Lowry," he declared.

But he became really animated when he spoke about the effect of the tribunal on his family.

"I was away on holidays with my children and I had to come back to answer an anonymous letter, before hundreds of barristers. My wife's medical records were read into the tribunal because the tribunal didn't believe she had complications. I was going to be with my wife when that happened. You get kind of emotional; you question the credibility of people involved in the process – not the chairman, but the legal team involved in the process."

But none of these things was on his mind, he emphasised, when he flew to Haiti, arriving on Sunday, January 17, 2010. His company Digicel was the country's biggest employer, and on top of the destruction of the capital Port au Prince and the chaos surrounding the relief effort O'Brien was trying to revive his mobile phone network on the poverty-stricken island.

On top of that, Charlie Bird was on his trail.

"Monday morning, I was told Charlie Bird wanted to do an interview. I had set up a whole pile of things I wanted to do – meet members of the emergency committee and the government, so I was running around all day. I squeezed in Charlie Bird when I was down in the city. After an earthquake people are like semi-zombies, the whole of the city was full of people walking around in a meaningless way.

"He started the interview, but after about 80 seconds there was gun fire.

"We hit the ground, Charlie Bird and myself. Then we were grabbed by security guards and thrown in to the back of the jeep and gone."

They met up later at the airport, but he said he didn't talk about himself or his company, but about the aid effort because he wanted people back home in Ireland to contribute to charities like Goal, Trocaire and Concern which were fundraising for the relief effort.

He then flew to Florida where Bill Clinton had convened a summit to try to co-ordinate the aid effort.

"I didn't think of the Moriarty tribunal for months after the 12th of Jan. I didn't think about it, my focus was making sure our people were looked after ... we lost seven people."

The Irish Daily Mail article, which reflected on the earthquake and Mr O'Brien's participation in the news coverage on RTE, was a "nasty, spiteful mean-spirited piece of journalism" he maintained.

But the "crescendo of nastiness" came from the heading, linking his efforts in Haiti to the supposedly "imminent" findings of the tribunal.

It tried, he said, "to get over that the whole Moriarty tribunal was going to come out and everything I was doing in Haiti I was seeking publicity, following Charlie Bird around like a lapdog ... to get a word with him – nothing could be further from the truth".

"He (Paul Drury) is entitled to his opinion but he should base it on facts, it is littered with mistakes. It was a mixture of opinions and commentary and a whole pile of facts that were totally incorrect – he has a right to say it is opinion, but you have to base opinions on facts."

The headline "was one of those reckless headlines designed to hook the readers and destroy my reputation" the media mogul said as he settled into the witness box for the second day.

Another area of contention was whether or not the findings of the Moriarty tribunal were imminent in late January 2010.

"There was no chance of him issuing the report," said Mr O'Brien.

"He issued it 14 months later. Every firm of solicitors in the country nearly had a client who was in the tribunal, it was out in the public domain."

After more sparring, Mr O'Brien lunged: "I know where you are going ... " he told Mr Quinn.

"Where am I going?" replied the barrister.

"You are trying to make it appear that the Moriarty tribunal report was coming out and going in the direction to say you commented (on the Moriarty tribunal report) – I am trying to save you a lot of bother," he told the barrister.

When Mr Quinn compared waiting for the Moriarty report with a group of people waiting at a bus stop, Mr O'Brien chirped: "I wouldn't be waiting for 14 months for a bus" to laughter from the gallery.

Asked if he felt "humiliated" that there were 60 negative findings against him in the preliminary report, he said no because they changed in the final report. But he did agree that "if everything in the report is true it is devastating" adding "but it is not true".

During Mr O'Brien's third day in the witness box Mr Quinn said that when the telecoms tycoon was telling the jury about himself, he said he owned "a small stake" in Esat Digiphone but did not say how much it was worth when it was sold in 2000.

O'Brien: At that stage I had a small stake in the business and got €290m, I couldn't stop the sale of the business because I didn't control it.

Quinn: You didn't have to pay tax on that because you are not resident in Ireland.

O'Brien: I was living in Portugal since 1999.

Quinn: Let us move on to Haiti, Digicel made $86m in Haiti last year and in 2012 you personally have been paid several hundred million dollars.

O'Brien: In dividends.

Quinn: You paid no tax on this because you say you are living in a flat in Malta.

O'Brien: I pay PAYE, I am a significant taxpayer in Ireland. It is incorrect to say I am a tax exile. I spend three-quarters of my time visiting my businesses around the world.

Quinn: You never told us about Malta, you are not there for the weather?

O'Brien: It is my business where I live. I have gone abroad to make investments.

Quinn: You haven't paid any tax in Ireland ... your family live in Ireland, this court is in Ireland.

O'Brien: We pre-paid $34m in taxes in Haiti because the equivalent of Dublin City Council in Port Au Prince had no money. I pay all my taxes locally on my investments around the world.

Quinn: You are living in a flat in Malta so you can reduce your tax bill on hundreds of millions of dollars.

O'Brien: I don't work in Ireland – 95 per cent of my businesses are scattered around the world from Fiji to the Caribbean.

Asked if the newspaper was "out to get him", he replied: "I never said the Irish Daily Mail was out go get me, I just said that it was factually incorrect and out to make me look ridiculous and contemptible."

The jury was then handed copies of a lengthy series of emails between Charlie Bird, RTE's then Washington correspondent, and Antonia Graham, Digicel's "head of public relations", who organised to get him into Haiti, where, unfortunately, as he told her in an email, he was "left on the tarmac without water or transport to get into the city".

Digicel, it emerged, organised to get Mr Bird in and out of Haiti, provided him with a satellite phone, a car and driver and a mattress.

"Charlie Bird is a little bit high maintenance," said Mr O'Brien.

Emails, in which Mr Bird told Ms Graham "I still love you" after being left on the tarmac and had tried to arrange an interview with Mr O'Brien, were read out to the amusement of some of the witnesses.

Mr Bird was trying to film Mr O'Brien in Port au Prince rather than Digicel's headquarters, which survived the earthquake, to "make him more connected to events". He said in one of the emails that he wanted to "build the full story around Denis O'Brien".

Certainly the first three days of this libel trial were built around Denis O'Brien, but it has next week to run – it resumes on Tuesday – when the other players in the drama, before a jury of six men and six women, and particularly Mr Drury, will have their day in the sun.

Irish Independent

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