A €310,000 award made by a judge to a former Kildare Gaelic footballer after finding he was defamed in two newspaper articles about swingers’ parties and the sex trade should be overturned, the Court of Appeal has been told.
The High Court had found in May 2017 that Brian 'Spike' Nolan (50) was grossly defamed in the Sunday World in July 2012 and March 2013.
Mr Justice Tony O’Connor found, among other things, that the newspaper was reckless as to whether the details and suggestions in the articles were accurate or true. He dismissed an additional claim by Mr Nolan concerning breach of privacy rights linked to the circulation of photos of him attending parties.
The Sunday World appealed the finding of defamation and the amount of the award. Mr Nolan opposed the appeal and cross-appealed in relation to the privacy finding. Having heard both sides on Friday, a three judge Court of Appeal reserved its decision.
Rossa Fanning SC, for Sunday Newspapers, publisher of the Sunday World, argued the trial judge erred because his decision was made either on no evidence or in contravention of the evidence before him.
Lurid
Tabloid journalism may not be to everyone’s taste, and is frequently lurid and sometimes distasteful, but it is inextricably connected with the constitutional right to freedom of expression, he said.
The trial judge formed an “exceptionally negative view” of the newspaper and a favourable view of Mr Nolan which was not warranted, counsel said.
The judge had referred to the fact that Mr Nolan, after attending four parties, stopped doing so because he found them distasteful, he said. This was “extraordinary” in light of the photographs taken and the fact it took Mr Nolan 18 months to find the parties not to his taste, he argued.
Mr Fanning said the objective facts of the case were that Mr Nolan had been convicted in 2002 of money laundering having got mixed up with notorious gangsters. He had been working as a mortgage broker, lost that work and got into landscape gardening and, more recently, car parking at Dublin Airport.
When approached by a journalist before the first article was published, Mr Nolan claimed initially he only went to one party, then admitted going to two and offered to reveal the names of others at the parties if the paper did not print his name, counsel said.
It was the paper’s case, although there was an error in saying Mr Nolan was an organiser of the party, the only issue the judge could have made out in relation to that was he had helped organise swingers’ parties given his relationship with his girlfriend, who did organise them.
Contributed
The amount of the award should be overturned on grounds including Mr Nolan caused or contributed to his own misfortune and the trial judge failed to have “any regard to the admitted facts”.
Jim O’Callaghan SC, for Mr Nolan, said the trial judge should give a certain discretion in relation to the evidence he heard as distinct from dealing with the case on a transcript of the High Court hearing as the appeal court was doing.
If there was ever a case where one benefited from hearing evidence, it was this one, counsel said.
Although there were only two witnesses, the appeal court did not hear the impact of Mr Nolan speaking of suicide or the conversation when he was doorstepped the journalist in 2012, he said.
Mr Nolan begged the journalist not to publish because he would lose his two children, of whom he had sole custody. His wife later took them away for six months and their names were changed to get them into new schools.
His side completely rejected there was no difference between attending and organising the parties because one involves a criminal offence of organising prostitution.
The paper's claim the articles enjoyed the protection of privilege under the Defamation Act was "unstateable" and should not be given any credibility, he said. The amount of damages, in relation to general, aggravated and punitive, should not be interfered with and the Sunday World "got off very lightly", he said.