Mr Eamon Dunphy is to appear in the High Court next Tuesday for alleged contempt of court arising out of comments made on his Radio Ireland show in the course of the De Rossa libel action. Mr Justice Carney told the commentator that if the hearing had been aborted he and the radio station would have been potentially liable for the costs.
Before Wednesday's proceedings started, the judge referred to a half-hour segment on Mr Dunphy's radio show the previous evening. In the absence of the jury, and before counsel for each side gave their closing statements, the judge said he had no authority to cross-examine the jury members on whether they heard something on a national radio station. He had to assume that it had been heard by them.
He said he had requested Radio Ireland to produce three copies of the final half-hour segment of Mr Dunphy's Tuesday evening programme.
He had also requested the station to provide a transcript. He was putting them on notice that he was prepared to join them as notice parties in these proceedings and they faced liability to pay the costs in the case. Independent Newspapers were "not in the frame" - the people in the frame were Radio Ireland and Mr Eamon Dunphy. In the interests of justice, he was requesting that Mr Sean Ryan SC for Mr De Rossa and Mr De Rossa himself have an opportunity to listen to a tape of this segment of the programme. The judge said he had thought the sequestration order made against Independent Newspapers would have concentrated the minds of the rest of the media, "but apparently it did not". This order remained to be dealt with after this libel action finished, he said. Last December, Mr Justice Carney made a conditional order for the sequestration of the assets of Independent Newspapers following complaints by Mr De Rossa about articles in the Sunday Independent. These articles were published following the discharge of a jury after an initial nine-day hearing of Mr De Rossa's libel action.
On Wednesday morning, the judge inquired if Mr Dunphy was in court and called him up to the front bench.
He told Mr Dunphy that as a result of the half-hour section of his programme which involved Mr Kevin Myers and Mr Fergus Finlay he was making an order that he be added as a notice party now to these proceedings. He suggested that if Mr Dunphy did not have legal representation that he get it immediately.
Once Mr De Rossa and his legal team heard the tape, what happened next depended on the submission they made.
The judge told Mr Dunphy that his potential liability was to pay the costs of the proceedings if the hearing aborted.
Otherwise, he would be dealt with for contempt of court on Tuesday "and I mean Tuesday".
The judge pointed out that Mr De Rossa had not been mentioned in the programme, but it did feature "Mr Dunphy's passionately favourable views on the Sunday Independent", its treatment of its columnists and its relationship with the Labour Party.
"It struck me at the time listening to it as being an advance speech to the jury ahead of Mr MacMenamin's address," said the judge, referring to the closing statement of Mr John MacMenamin SC for the Sunday Independent.
Mr Justice Carney said some words in the programme struck him as a general eulogising by Mr Dunphy of the Sunday Independent and its columnists with "various people called bollocks and so forth". Mr Sean Ryan SC, for Mr De Rossa, said that in other circumstances he would have looked for a discharge of the jury. They were on day 11 and this was the third hearing. "I cannot subject my client to the risk of undergoing another trial. He has had enough," Mr Ryan said.
