Sunday 15 December 2019

Shane Phelan: Both sides claim vindication in libel battle

Tom McGuire, head of RTÉ Radio 1, and presenter Claire Byrne pictured outside the Four Courts yesterday after Nicky Kehoe was awarded €3,500 damages following a High Court action. Photo: Collins Courts
Tom McGuire, head of RTÉ Radio 1, and presenter Claire Byrne pictured outside the Four Courts yesterday after Nicky Kehoe was awarded €3,500 damages following a High Court action. Photo: Collins Courts
Shane Phelan

Shane Phelan

As the dust settled on the jury's verdict, both Sinn Féin political manager Nicky Kehoe and RTÉ were claiming a measure of victory. In truth, there were positives and negatives for both sides.

Mr Kehoe won his case and said his reputation had been vindicated. Although his legal team sought substantial damages, he insisted afterwards that the case was about his good name and not about money.

The €3,500 he will receive is the lowest High Court defamation award in modern times. And because the figure is so low - just a fraction of the €75,000 and above the High Court has jurisdiction to award - he now faces being penalised when the issue of legal costs is considered.

RTÉ may have lost the action, but it was keen to accentuate the positives.

RTÉ Radio One chief Tom McGuire said the outcome vindicated RTÉ's decision to defend the action.

The case was a difficult one for the jury, which had much to consider.

Firstly, they had to decide whether Mr Kehoe, jailed twice for serious terrorist offences, had a reputation to defame.

Secondly, jurors were presented with a novel question for an Irish defamation case. If he was defamed, how much of the fault lay with RTÉ and how much with former Labour Party TD Joe Costello?

On the first issue, the trial heard how Mr Kehoe had reformed himself since leaving prison in 1983, going on to become a councillor and an active figure in the GAA.

They heard how, during an edition of the 'Saturday with Claire Byrne' programme in 2015, Mr Costello alleged a member of the IRA army council was directing Sinn Féin councillors on Dublin City Council. Mr Kehoe's name was introduced to the discussion by Sinn Féin TD Eoin Ó Broin, who gave an impassioned defence of his party colleague.

Within minutes, Mr Costello had climbed down. Ms Byrne also read a clarification at the end of the show. However, it was clear from the verdict the jury felt there was still an inference hanging in the air, that Mr Kehoe did have a reputation, and he had been defamed.

Although they did not find that the broadcast meant he was at that time on the IRA army council and involved in a deliberate attempt to subvert the operation of the city council, they did find it meant he was not a fit person to be involved in the democratic process.

RTÉ, they found, was not entitled a defence of fair and reasonable publication.

The verdict sends out the message that reformed terrorists, such as Mr Kehoe, are not fair game and have a right to their reputation.

On the second issue, they ascribed 65pc of the blame for the defamation to Mr Costello, who was not a defendant in the case.

The finding will come as a warning to participants on discussion programmes that it is not just the programme-makers who can be held liable for libellous remarks. They too can end up in hot water if they are not careful.

Irish Independent

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