Dermot Desmond defamation case against Irish Times ready for hearing, judge told

The way has been cleared for a trial date to be fixed for businessman Dermot Desmond’s High Court action against The Irish Times over alleged defamation.

Mr Justice Alexander Owens was told on Monday, following his recent determination of the only outstanding pretrial matter in the proceedings, it was ready for trial.

The proceedings may now be listed in the next High Court list to fix trial dates for such actions.

The case arises from The Irish Times’ coverage in 2016 of the so-called Panama Papers, based on details within 11.5 million documents leaked from the Panamanian law firm Mossack Fonseca that contained financial information about offshore tax entities.

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The information was leaked to the German newspaper Süddeutsche Zeitung and shared with The Irish Times and other media outlets around the world through the US-based International Consortium of Investigative Journalists.

In proceedings initiated against The Irish Times in July 2016, Mr Desmond is seeking damages, claiming an article published on April 7th 2016, by itself, and in the context of earlier articles concerning release of the Panama Papers, defamed him.

He claims the article wrongly meant, among other things, there was something improper about the manner in which he organised his financial affairs. He also alleges breach of privacy and breach of confidence.

The Irish Times denies the claims and has pleaded, among other defences, the article was published in good faith, in the course of, and for the purpose of, a discussion of a subject of public interest, namely the growth of offshore tax and regulatory havens. That discussion, it pleads, is for the public benefit.

In a pretrial application, Mr Desmond opposed The Irish Times proposal to call expert evidence from Nobel laureate economist Joseph Stiglitz.

Professor Stiglitz had prepared a report which considered the Panama Papers, The Irish Times coverage, and issues including the scope and effects of the offshore financial system.

The report set out his opinion concerning whether the reporting on Mr Desmond in the article of April 7th 2016 supported the public interest.

Dr Stiglitz said that reporting introduced an important issue regarding corporate transparency – the use of bearer shares, ownership shares in a company where the owner of the shares is the individual holding the shares at any given time. Abolishing the use of bearer shares was an internationally agree upon priority before publication of the Panama Papers, the report noted.

In a ruling last month, Mr Justice Owens held Prof Stiglitz’s evidence was inadmissible because it is not necessary to decide the issues arising from the defence, under section 26 of the Defamation Act 2009, of fair and reasonable publication in the public interest.

The superior court rules provide expert evidence “shall” be restricted to that reasonably required to enable the court to determine the proceedings, he said.

Such evidence may be received on matters outside common knowledge but the existence of offshore tax havens and use of corporate tax structures to avoid paying tax and to hide wealth are “within common knowledge”, he said.

The matter returned before the judge on Monday to decide final orders and costs issues of the pretrial application.

Jim O’Callaghan SC, with Ray Ryan BL, for Mr Desmond, asked that the final order preclude Prof Stiglitz’s evidence on grounds of inadmissibility. His side was entitled to its full costs, having succeeded in its application, counsel submitted.

Michael O’Higgins SC, with John Maher BL, for The Irish Times, said the judge’s ruling had determined important issues making it effectively a trial ruling of assistance to the sides. In light of that, he asked the judge to either reserve costs of the application until after the case is decided or apportion some costs now, with the balance to depend on the outcome of the case.

Having considered the submissions, the judge made the orders as sought by Mr Desmond.

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