MR Justice French told the jury in the Reynolds libel trial yesterday that the case turned on what Mr Reynolds knew on the Monday night before the fall of the government on Wednesday, November 16th, 1994.
Did Mr Reynolds know on the Monday that there had been an extradition case a couple of years earlier which might be relevant to the Smyth case? Or was the first time Mr Reynolds really appreciated the significance of the Duggan case at about 9 p.m. on the Tuesday night, well after the proceedings in the Dail? "You may think that that question lies at the heart of the case. It is for you to decide," he said.
Mr Justice French was starting his summing up on the 17th day of the trial in the High Court in London. Mr Reynolds is suing the Sunday Times over an article published in the English edition of the paper under the title, "Goodbye Gombeen Man", which said: "How a fib too far proved fatal for Ireland's peacemaker and Mr Fixit".
He asked the jury to bear in mind the burden of proof when considering this question. The defendants had made the allegations, so it was up to them to prove them.
In a civil trial the burden of proof was "on the balance of probabilities", he told them, unlike in a criminal trial, when it was "beyond reasonable doubt". However, the more serious the allegations, the surer the jury must be that the allegations were true.
For example, if the allegation was that the plaintiff was an armed robber, the jury must be more sure it was true than if the allegation was that he had "made a rude gesture, like the victory sign to his mother in law.
"You may think that allegations of lying to and dishonestly misleading the Dail and Cabinet colleagues are very serious allegations indeed," he said.
He said they would also have to consider whether the defendants were activated by malice. This would depend on their answer to the questions which would be put in due course.
"The use of the word malice is rather more complex than you might have thought," he said. "The plaintiff has to prove malice because he alleges it."
In law malice did not just mean "spite or ill will", though it included spite and ill will, he said. Malice was inferred from what the author said and what he knew. Evidence of his state of mind lay in what was written. Carelessness did not amount to indifference to the truth.
Again, the question of malice had to be decided on the balance of probabilities, and the degree of proof depended on the gravity of the allegations.
Turning to the evidence, Mr Justice French said it was normally given by witnesses in the witness box. But circumstances may arise when witnesses were abroad and could not be compelled by subpoena to come to court. It was permitted for statements made by them to be put forward as evidence, and the jury had heard statements from the hearings of the select committee.
The disadvantage of this was that the witnesses would not have been cross examined in quite the same way. "It is for you to come to your own conclusions about the accuracy or otherwise of the statements made before you in this court," he said.
He also warned the jury about hearsay evidence. Using again the example of the "victory sign to the mother in law", he said: "If Alan told you that he saw John give a victory sign to his mother in law, that is only evidence of what Alan said. It is inevitable in this case that there is a good lot of reporting of what other people have said." He urged them to bear this in mind when considering what the plaintiff knew about the Duggan case on the Monday.
Mr Justice French summarised the career of Mr Reynolds up to becoming Taoiseach in 1992. "A great achievement of his was being party to the Downing Street Declaration which led to the IRA ceasefire, which brought England and Northern Ireland some respite. Despite recent breaches of the ceasefire no one can take that distinction from him."
He outlined the events of the days leading up to the fall of the government. He said there was no dispute that Mr Reynolds did not see the Fitzsimons letter until the Tuesday night, after he had given his speech.
Comparing Mr Reynolds's two speeches on the Tuesday and Wednesday, he told the jury they had to decide what they made of the change in attitude to Mr Whelehan, if anything.
Referring to Mr Reynold's evidence of giving lectures in Britain, he said: "The defence pointed out that if they thought any the worse of you then they would not invite you to come and lecture. That is a point for you to consider."
Mr Justice French will continue his summing up on Monday, and yesterday he told the jury it might run into Tuesday, when he will ask it to retire to consider a verdict.