Denis O’Brien libel case hard fought for high stakes

The evidence in many court cases could well be split into The Good, the Bad and the Ugly, but it is unlikely Sergio Leone’s classic western film has been referenced in any previous High Court case.

Denis O’Brien’s lawyer said hearing Ennio Morricone’s famous score to that film on his car radio made him wonder why the Sunday Business Post had not, in its disputed articles about the biggest borrowers from Irish banks in 2008, divided the 22 people up along the lines of the film title.

O’Brien was, and is, a good borrower and was the “odd man out” among the 22, Luán Ó Braonáin told Ian Kehoe, who was editor of the newspaper when the articles were published in 2015.

Ó Braonáin did not specify which of the remaining 21 – among them developers Seán Mulryan, Derek Quinlan, Johnny Ronan and businessman Seán Quinn – should be defined as good, bad – or even ugly.

Kehoe maintained O’Brien had been named because he had been one of 22 identified by PriceWaterhouseCoopers (PwC), in a confidential report to the government in late 2008, as the biggest borrowers.

He said the articles were not about O’Brien but rather about what happened to Ireland during the 2008 financial crisis. It had been faithful reporting on a document “held secret for the guts of a decade”.

Cross-examination

Michael McDowell SC, for the newspaper, was not to be outdone by Ó Braonáin in the culture stakes.

Ever heard of the song, You’re So Vain?, he asked O’Brien during cross-examination.

“It’s a good song,” O’Brien responded, “I didn’t know you were a music buff.”

McDowell declared he was a fan of 98FM, one of the media outlets owned by the businessman.

In referencing the Carly Simon number, which includes the line “you probably think this song is about you”, McDowell’s point was that the articles were not about O’Brien.

The businessman said he was not self-obsessed and told McDowell: “I’m second place to you in the vanity stakes.” His belief was that the articles referred to him in a defamatory way.

The music might have died that day but the drama did not. This was a hard-fought case, with both sides playing for high stakes and neither yielding an inch.

O’Brien took time out from his international business interests to attend practically all of the hearing. He sat daily on a hard wooden bench opposite the jury, listening intently and was often in huddles outside court with his team of lawyers lead by Paul Meagher. His spokesman James Morrissey was also there most days.

Journalist Tom Lyons, who got, and later shredded, the PwC report on which the articles were based, and who wrote the bulk of the articles, was in court daily, accompanied by his father. So too was Kehoe. Both have since left the Sunday Business Post for reasons unrelated to the articles and are setting up a media company together.

O’Brien was intensely cross-examined by McDowell and there were several barbed exchanges. He complained “voyeurism in Ireland is alive and well when it comes to people’s banking affairs” and it was “outrageous” that he had been “lumped in” with the 22.

He insisted the articles meant he was one of 22 people that “unravelled the country” which was “pretty shocking stuff” when he was not to blame for the financial crisis. He paid his interest every month, paid all his loans off, put €600 million on deposit in two Irish banks because of “a flight of deposits by multinationals” out of Ireland and, if he had to, could quickly come up with a cheque for €1 billion, he said.

“That gives the context why I’m quite upset about being defamed all over the place in six pages.”

McDowell saved his strongest attack on O’Brien for his closing address when he castigated the businessman’s allegation of defamation as “manufactured, false, damaging, irresponsible and malicious”.

‘Fear factor’

In their evidence, Lyons and Kehoe both told McDowell they had considered leaving O’Brien out of the articles because of a “fear factor” in the context of previous litigation by him against various media outlets. They said they left him in because he was among the 22 named in the PwC report.

Under forensic cross-examination respectively by Paul O’Higgins SC and Ó Braonáin, both denied any malice or any “agenda” towards O’Brien or that trying to find any positive information about him in the articles was like looking for a “needle in a haystack”.

O’Higgins was more restrained about the opposition in his closing address, but did refer to journalists as “welching flowers in every way” and couldn’t resist a side swipe over an “ungrammatical” sentence in one of the articles. The “grammatical part” of that sentence, and the following sentence in the article contained 21 words positive towards Mr O’Brien, he observed.

After the sides clashed on the precise questions for the jury, Mr Justice Barton ruled on that and nine questions went to the jury, which went out at 1.45pm on Thursday.

When the jury came back just after 4pm on Friday, after just over seven hours deliberating, the foreman said they had reached a majority verdict. They found against O’Brien, who was not in court on Friday, and found he had not been defamed.

The businessman’s reprieve from court battles will be short.

On Tuesday in Galway, the Supreme Court will give judgment on his appeal over the rejection of his challenge to statements made in the Dáil about his banking affairs.