The libel trial judge's remarks in the case taken by Mr Albert Reynolds against the Sunday Times wrongly suggested something "profoundly shifty" about what the former Taoiseach knew or did not know, the Court of Appeal in London was told yesterday.
It was the fifth day of appeals arising out of the libel case. Mr Andrew Caldecott QC, for Mr Reynolds, completed his submission against the result of the libel case. The article complained of was in the English edition at the time of the collapse of the coalition government in 1994.
The jury had found Mr Reynolds was libelled by the article in the newspaper in November 1994 but he was awarded zero damages. The judge subsequently awarded him one penny. Mr Reynolds will also be liable for the costs, estimated at £800,000, because his award was below the paper's offer of £5,005.
Mr Reynolds is seeking a retrial essentially on the grounds that the judge in his summing-up to the jury misrepresented his case.
Yesterday, Mr Caldecott refer red to what he said was the main issue of whether Mr Reynolds lied to the Dail on Tuesday, November 15th, 1994, by not mentioning the possibility that Mr Harry Whelehan, the former Attorney General, might have to resign as President of the High Court. He had been appointed the previous Friday.
The controversy revolved around the delay in the extradition of paedophile priest, Brendan Smyth. Questions had arisen over Mr Whelehan's handling of the case when he was AG. There was also the question of the discovery of an earlier extradition case, the Duggan case, and whether it was relevant to the Smyth case.
The judge's summary alleged Mr Reynolds had suggested he could not remember his conversation with the newly-appointed Attorney General, Mr Eoin Fitzsimons, on the Monday about the possibility of a similar case. Mr Caldecott said Mr Reynolds had never asserted this. Counsel said the judge also suggested Mr Reynolds had overlooked the possible significance of the Duggan case on the Monday. However, Mr Reynolds's case was that he did appreciate its possible significance.
The way the judge summed up this part of the evidence suggested "something profoundly shifty about what Mr Reynolds knew or didn't know".
"It was a grossly unfair distortion of what Mr Reynolds had, in fact, said," counsel stated.
Bearing in mind other events, all Mr Reynolds was saying was he had not forgotten anything but he was talking about priorities. Certainly, he never said it was put out of his mind.
"The judge attempts to put the plaintiff's case but gets it hopelessly wrong," Mr Caldecott said. "The whole question of what he [Mr Reynolds] knew on the Monday becomes very sinister in the judge's charge."
The real issue the judge should have made clear was whether Mr Reynolds was acting honestly in the Dail on the Tuesday, when he defended the appointment of Mr Whelehan to High Court. The issue was not what happened on the Monday.
Mr Caldecott then referred to a document that was not admitted for evidence, a diary of then Minister for Social Welfare, Mr Woods. Mr Reynolds had been cross-examined about this document.
If there was an argument about the admissibility of evidence, the improper way was to bully the witness when in the witness-box when he had no access to counsel.
If the jury heard a question in cross-examination asking if he consented to the document going in, and the witness said he did not know if he was allowed to answer and if he could consult his counsel, it looked as if he had something to hide, Mr Caldecott said.