Denis O’Brien loses defamation case against Sunday Business Post

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

The jury, by a majority, dismissed the case this afternoon. Mr Justice Bernard Barton dismissed the case with an order for costs against Mr O’Brien. Total legal costs of the case could run to €1m.

Mr O’Brien, who had attended each day of the case up to the 17th day today, was not in court for the verdict.

The eight men and three women began deliberations about 12.45pm on Thursday and the foreman told the judge about 12.40pm on Friday, after some five hours deliberation, they could not reach a unanimous decision on some of the nine questions before them.

They had gone through all of the questions twice, the foreman said.

In those circumstances, a majority decision was open to them, Mr Justice Barton told them. That meant at least nine of them must agree on the answers to the questions and it must be the same nine, or ten, who agree on each answer.

The jury then resumed considering their verdict and returned to court just after 4pm.

Mr O’Brien sued Post Publications Ltd, publisher of the SBP, over articles published over six pages in the newspaper of March 15th 2015 in which Mr O’Brien was named as amongst the 22 biggest borrowers from Irish banks in 2008.

Their focus was a confidential Price WaterhouseCoopers (PwC) report given to the government in November 2008 which looked at the exposure of Ireland’s banks in 2008.

Report shredded

Journalist Tom Lyons got a copy of the report from a source in early 2015 and shredded it shortly after the articles were published to protect the source.

Mr O’Brien claimed the articles, including articles headlined “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, in that context, 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 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 or top 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.

Question 5 and 6 asked whether 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. The total legal costs of the case could run to €1m. Mr O’Brien was represented by two senior counsel - Paul O’Higgins and Luán Ó Braonáin and junior counsel Marcus Dowling, instructed by Meagher Solicitors. Post Publications was represented by Michael McDowell SC, with junior counsel Shane English, instructed by John Doyle, of Dillon Eustace Solicitors.

Separately, the Supreme Court will rule next Tuesday in Galway on Mr O’Brien’s appeal over the rejection of his challenge to statements made in the Dáil about his banking affairs. That judgment was to be delivered last Wednesday but, at the request of O’Brien’s lawyers last Monday, the Supreme Court agreed to defer it because of the defamation case.

Reaction

In a statement following Friday’s verdict, The Sunday Business Post said it welcomed the verdict of the jury.

While the article which led to this action predated the purchase of the Sunday Business Post by Kilcullen Capital Partners, the issues raised are of critical importance for the media in Ireland and therefore the new owners were happy to support the paper’s defence of this claim, it said.

Chief executive Siobhán Lennon said: “The Sunday Business Post prides itself on its independence and objectivity. Now more than ever a strong, independent and objective media is essential to a functioning democracy.”

She said the case highlighted 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. “We believe it is time for action to reform the relevant defamation laws and to ensure that the media are liberated from unreasonable pressures which currently exist.

Ms Lennon thanked the paper’s legal team as well as Tom Lyons former business editor and Ian Kehoe former editor of the paper “for their time and robust defence of this case”.

Tom Lyons said they had “stood up to him and fought for a full month”.

“Thankfully, the jury came down on our side,” he said. “Hopefully this will make people like Denis O’Brien think twice before taking cases like this.”

Mr Kehoe described the verdict as a vindication.

“This is not a victory, it is a vindication of what we chose to publish. The easy thing to do in situations such as this would have been to cave.”

Séamus Dooley, Irish secretary of the National Union of Journalists also welcomed the decision.

“The work of Tom Lyons, Ian Kehoe and the Sunday Business Post was manifestly in the public interest,” he said. “Mr Lyons and Mr Kehoe withstood enormous pressure in the witness box and deserve credit for the manner in which they stood up for the principles of media freedom.”

He pointed out that Mr O’Brien “could have taken his case to the Office of the Press Ombudsman, a complaints system which is fair, independent and devoid of the risks and costs associated with High Court actions”.