Woman wins €90,000 damages in privacy case

A WOMAN has won €90,000 damages from the High Court after it ruled that newspaper articles about her relationship with a priest based on unlawfully tapped phone conversations were a "deliberate, conscious and unjustified breach" of her constitutional right to privacy.

The award is the first against a non-State entity arising from illegal phone-tapping.

The behaviour of Associated Newspapers (Ireland) Ltd in publishing articles based on unlawfully tapped phone conversations between Michelle Herrity and Fr Heber McMahon in Ireland on Sunday was "nothing short of outrageous" and could not be condoned in any way whatsoever, Ms Justice Elizabeth Dunne said.

The judge said there was no doubt Ms Herrity's phone line was interfered with and a recording device was attached to it at the instigation of Liam Herrity, Ms Herrity's estranged husband. The court had been told the conversations were tapped by a private investigator at the instigation of Mr Herrity.

Ms Herrity had claimed her husband said they would be published unless she agreed to sign over her interest in the family home for €20,000.

Ms Herrity had sued over breach of her right to privacy and, in a reserved judgment yesterday, Ms Justice Dunne ruled the right to freedom of expression cannot be asserted over information unlawfully obtained even when that information is true and there may be a public interest in publishing information about the conduct of a priest.

She awarded a total of €90,000 in damages to Ms Herrity, including €30,000 in punitive damages, over articles published in November 2003. Punitive damages were awarded because of the use of unlawfully obtained material and the distress caused to Ms Herrity over the "flagrant and unwarranted" breach of privacy, while €60,000 was awarded as ordinary and aggravated compensatory damages for the unjustified breach of privacy.

The judge said the articles about the relationship between Ms Herrity and Fr McMahon, then a parish priest at Brackenstown, Swords, Co Dublin, were one-sided, based solely on Ms Herrity's husband's version of events, and a deliberate, conscious and unjustified breach of Ms Herrity's right to privacy on foot of transcripts of illegally tapped phone calls.

Their publication over a three-week period was designed to extract "maximum value" from the taped conversations, and the articles used family photos and other material with no bearing whatsoever on the public interest.

However, the most serious aspect of the case was the use by the newspaper of material obtained from an illegal phone tap and from a husband "motivated by revenge".

While she believed some limited information about Ms Herrity could have been published in an article about Fr McMahon's conduct in embarking on the relationship, the newspaper went beyond what was permissible in using material unlawfully obtained, the judge said.

There was no genuine attempt by it to get Ms Herrity's side of the story and, if there was, that would not justify the breach of privacy. While the newspaper phoned her the day before publication asking about her relationship with Fr McMahon, it did not ask her about her friendship with another priest referred to in one article.

In those circumstances, the judge rejected the newspaper's claims that publication was justified on grounds of its right, and that of Liam Herrity, to freedom of expression; that Ms Herrity did not challenge the accuracy of the information; and that publication was in the public interest as it exposed conduct of a Roman Catholic priest required to be celibate.

The Ireland on Sunday articles were headlined "Husband accuses priest of dirty dealing . . . with his wife", "Wife's nights on the town with her OTHER wild priest" and "Phone lover priest quits". They described in detail a friendship between Ms Herrity, her husband and Fr McMahon, and the breakdown of the Herritys' marriage.

The articles outlined transcripts of phone conversations between Ms Herrity and Fr McMahon, and stated they shared "intimate and frequent" phone conversations intercepted by a private eye working for Mr Herrity.

It was stated that Mr Herrity had reported Fr McMahon to the diocese after he caught his wife and Fr McMahon going on holiday to Italy and having dinner in a restaurant. One of the articles also referred to Ms Herrity socialising with a Fr Eddie Cleary, originally from Co Tipperary.

Having analysed the evidence, Ms Justice Dunne said she was satisfied the relationship between Ms Herrity and Fr McMahon became intimate only after the Herritys' marriage had broken down, although she was unclear whether this was after Mr Herrity had left the family home.

The judge accepted Ms Herrity had "legitimate concerns" in 2003 about the nature of her husband's relationship with a young man, with whom he now lives. Ms Herrity had told the court she had confronted her husband about that friendship and asked him to leave the house. Court proceedings followed in summer 2003.

Ms Herrity had also said in evidence that she is now living with Fr McMahon, who has applied to be laicised.

Fr McMahon had told the court the break-up of the Herritys' marriage pre-dated his relationship with Ms Herrity.

He accepted he was engaged in an emotional and sexual relationship with Ms Herrity by November 2003, when he was still a serving priest.

He tendered his resignation after the article was published.