THE case they had been hearing was not black and white, Mr Justice Moriarty told the jury members before they retired to consider their verdict in the libel action taken by Mr De Rossa against Independent Newspapers.
Summing up after 12 days of evidence and lawyers' submissions, the judge said the case was one of "momentous importance" involving far reaching issues for the parties concerned.
The consequences for either party, however, were not a matter that should occupy the jury's attention, he warned.
He told the nine women and three men that it was a case which, depending on their consideration, may go either way". It was not an "utterly clear cut or black and white case" and that might be one reason it had occupied such time and caused controversy and difficulty for both sides.
The jury's decision should not be governed by extraneous matters. "Do not be influenced in any way by the financial means of the plaintiff or the defendants and their particular functions in life," he advised.
Nor should the jury hold it against the defendants that they were a leading newspaper group or the plaintiff that he was a leading politician, and an unashamed politician of the left wing.
The judge said Mr Eamon Dunphy had sought to address the jury about how an adverse verdict might have bad consequences for him.
He had interrupted him as he felt this was an utterly inappropriate comment, and not one that Mr De Rossa had attempted to make.
The basis on which the jury must decide was the balance of probabilities, and not proof beyond reasonable doubt. But that did not mean it should decide far reaching issues on a "mere whim or caprice".
The legal system attributed very grave and decisive weight to the views of juries, he said. Unless he gave the jury some serious misdirection on a matter of law, its verdict might well stand for all time.
Shortly after Mr Justice Moriarty began his address, one juror became unwell and left the jury box. When the case resumed after an adjournment of about 40 minutes, the judge asked the juror if she was all right and she said she was. The judge said he was sorry for the delay and pressure caused.
Resuming his address, Mr Justice Moriarty said the first question the jury had to answer, which was in effect two questions in one, went to the heart of the case.
The question was: "Do the words complained of mean: (a) that the plaintiff was involved in or tolerated serious crime; (b) that the plaintiff personally supported anti Semitism and violent communist oppression?"
If the answer to either question was "yes" then the plaintiff must succeed in recovering some claim for damages.
The judge said question two, "if the answer to 1 or either part thereof is `yes', were the words complained of published by the defendant without genuine belief in their truth?", essentially dealt with the question of malice in the legal sense.
The third question dealt with damages but if the answer to the two parts of question one was "no", judgment would be given against Mr De Rossa and the jury should not proceed to questions two and three.
Jury members were told that if they felt the article as a whole meant Mr De Rossa was involved in or tolerated serious crime and that he supported anti Semitism and violent communist oppression, then a defence of fair comment would not be sufficient in law to exculpate the defendant.
Both sides agreed the article predominantly related to alleged facts rather than comment.
In general terms defamation was the publication or the issuing to another person or persons of a false statement about a person to his or her discredit without lawful excuse, the judge said.
In essence it meant the statement or article was likely to affect a person adversely in the estimation of reasonable people.
Defamation actions took the place of duels or blood feuds. They were not concerned with the notion of southern Italian feuding, still less with Mr Dunphy and Mr De Rossa proceeding to the Phoenix Park. The defamation law was a fair and non violent way of resolving issues now.
There was no issue about the fact that the defendant published the article concerned in a newspaper with the largest circulation in the country of about one million readers.
The defendants also admitted that the article did refer to the plaintiff, although the evidence had touched on the degree to which it also referred to the role of the Workers' Party and/or Democratic Left and to the degree to which Mr Dunphy may have sought to criticise Mr Spring, leader of the Labour Party, for embarking on a coalition course with particular parties at variance with his previous stance while in opposition in the Dail.
The essential issue was the jury's answer to questions 1(a) and 1(b). In looking at the article, the jury should read the article as a whole and not take a fanciful or rarefied interpretation of it.
The law was clear that the issue was determined by the reaction of the ordinary reader and not by the interpretation of the editor or journalist, not even by what may have been read into it by Mr De Rossa or the other TDs who testified on his behalf.
The jury had to read the article and decide whether, on the balance of probabilities, the plaintiff had proved the allegations in questions 1(a) and 1(b).
If they were satisfied there was defamation, they had to proceed to consider question 2. They were not directly dealing with a defence of fair comment as the article contained more fact than comment.
They would assess the evidence, having regard to the paramount importance of a senior politician in safeguarding his reputation.
They would have regard to the necessity, not questioned by anyone in the case including Mr De Rossa, that there be a free press entitled to comment and criticise robustly, even if in a way that might be hurtful at times, providing they were not breaching the laws of libel.
People had come under the spotlight in the last 20 to 30 years and politicians, and even judges, had come much more under the microscope than before.
Question 2 put to the jury dealt with malice. Independent Newspapers was the defendant in the case, not Mr Dunphy. Mr Paul O'Higgins SC, for Mr De Rossa, had told them that it was the state of mind of Independent Newspapers that was involved and not the bona fide beliefs in truth of Mr Dunphy.
If the answer to question 1(a) - did the words complained of mean that the plaintiff was involved in or tolerated serious crime? - was yes, then this would carry a higher entitlement to damages than question 1(b) which was: did the words mean that he personally supported anti Semitism and violent communist oppression?
If the jury found that the words were published by the defendant without genuine belief in their truth, they were then entitled to award aggravated damages.
Damages were an attempt to put a person such as Mr De Rossa back into the position he would have been in if a wrong had not been done to him. Obviously it was easier to assess damages in personal injury cases where people could come to court complaining of loss of an eye or severely broken limbs. It was extremely difficult to set a value on damage to a person's reputation.
The plaintiff had clearly urged that if they found in favour of him then it would necessarily be one of the gravest libels against a senior politician involving extremely grave imputations on the basis of what was set forth in question 1.
The plaintiff contended that money of a very significant order would have to be awarded to compensate. If the money was less, the plaintiff contended, then people would feel it was less than a true vindication.
Mr Kevin Feeney SC, for Independent Newspapers, had argued that neither meaning in questions 1(a) and (b) was disclosed in reading the article in its totality. Even if they found a libel had been committed, they should not find malice.
Mr Feeney had said they should remember that Mr De Rossa had continued to make powerful advances in the national political scene and was now a senior Minister in the Cabinet.
If they should find defamation, then it was a comparatively rarefied interpretation by a person who had read the Moscow letter only and not the subsequent material. By implication, the judge said, Mr Feeney appeared to suggest that modest damages be awarded if they decided to do so.
If the jury were to find there had been a libel, it would indeed be an extremely substantial matter and they were entitled to reflect that there should be a high award.
They should bear in mind that Mr De Rossa's position might not be commensurate with a person's position in a personal injuries base, where a body or brain might be shattered by desperately grave injury.
Substantial damages might be merited if they found for Mr De Rossa particularly in question 1(a), but they should bear in mind that the damages might not be as swingeing or grandiose as lasting or terminal damages to the body or brain for the rest of a person's life.