Closing Arguments

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From top: Michael McDowell SC with Journalist Tom Lyons; Denis O’Brien with Luán Ó Braonáin SC at the High Court last week.

This morning.

The High Court, Dublin.

In the libel trial between Denis O’Brien and The Sunday Business Post

The ‘sheet‘s Olga Cronin was live tweeting from the court…

Update:

Paul O’Higgins SC [for Denis O’Brien] said that Mr O’Brien was clearly a wealthy man, written about in newspapers and involved in a certain amount of litigation but he told the jurors they could not make a judgment based on any such factor.

He said Mr O’Brien was not “coming the heavy” to destroy people. He said Mr O’Brien could have sued the former editor Ian Kehoe and former business editor Tom Lyons personally, but he did not do that.

He claimed Mr McDowell’s speech was not short of words but that very few of them dealt with what the case was about and said it was not about most of the things the defence claimed it was about, but was much more complex.

Mr O’Higgins accused the newspaper of presenting the articles in a sensationalistic, heavily coloured “get up” designed to wow the reader from the front page.

He said Mr O’Brien claims the message coming from the articles was that the businessman was one of the borrowers most to blame for the destruction of the Irish banking system and the subsequent bail out.

It was irrelevant if the newspaper did not intend to convey that meaning.

Lawyers deny O’Brien ‘coming the heavy’ for SBP (RTÉ)

Rollingnews

47 thoughts on “Closing Arguments

  1. eoin

    This is day #? 12? What’s the legal costs meter up to? €250,000? Some are talking about €500,000+.

    And why on earth didn’t the SBP attack the reputation of Denis O’Brien. After the conclusions of the Moriarty Report, what reputation does he have left?

    This is a most peculiar case, and if you were of a cynical disposition, you might think there’s more to it that Denis defending his, ahem, reputation.

    1. Conall

      Could you post an interested commenter in the direction of what more to what you think there is?

      Is the ‘bit more’ related to why Denis’s reputation was not attacked?

      I agree that this seems surprising, unless there is some legal reason for not doing so… sometimes the law is an ass.

      Everyone looks entirely too happy for a case involving so much money. Maybe it’s the weather.

      1. Ian-O

        My opinion would be he is doing what Robert Maxwell used to do – sue everybody to the point that people are afraid to say anything about him.

        Think about it – you say something mean about Denis, he sues you – could you afford a defense team like the SBPost? Probably not.

        Could you afford all that time in the witness box? Probably not.

        He can and he does, quite a lot it would seem.

        And it makes people afraid to say boo about him. I remember watching (on Youtube), Oliver Callan mentioning [REDACTED] on the LLS and Turgidy nearly shat himself.

        1. Conall

          As you can’t be sued in respect of things said in court, I would have thought a defamation trial the perfect opportunity to raise the things that people might be afraid to say otherwise – assuming of course they were relevant and admissible.

          1. Ian-O

            Considering how much they are paying their legal team and considering they are there for a very specific reason, very bad idea to start bringing in stuff not directly related to the case.

            I’m sure their legal team provided excellent coaching so if they didn’t say, it was because it would not be of any benefit to their defense.

            Love him or hate him, if Michael McDowell gives you legal advice, I’d tend to pay attention. He seems to know a bit about the law.

          2. Conall

            I’d like to have legal advice explained to me rather than blindly following. No one is infallible.

            As you’re obviously a man with knowledge of the law (or maybe just a man with a mancrush on lawyers?), maybe you can help me out instead till Eoin, whom I addressed my comment to, returns.

            I’ve heard of a concept in the US called the ‘libel proof plaintiff’, does this exist in Irish law?

          3. The Old Boy

            There are several different defences available to an action in defamation. The first is the publication was not, in fact, a defamatory statement, which is defined as a “statement that tends to injure a person’s reputation in the eyes of reasonable members of society.”

            Among the other defences available is the statutory defence of truth under S16 of the Defamation Act of 2009. To make out that defence, the defendant effectively concedes that, were it not true, the statement in question would, in fact, be defamatory.

            Of course, the idea of there is other evidence is speculative. It is generally thought by defamation practitioners (and I am not one) that the most successful defences emphasise that what was said could never be construed as injurious to the plaintiff’s reputation, rather than saying “the plaintiff is a crook, and we’re here to prove it.”

            A failed defence of truth greatly increases the chances of an additional award of aggravated damages, where the court holds that the defendant conducted the defence in such a way as to aggravate the damage to the plaintiff’s reputation, so counsel will be particularly wary of advising such a course of action.

            As to the “defamation-proof plaintiff”, the concept has not made it to this side of the Atlantic. From (rusty) memory, the leading case is Polanski v Condé Nast, where on appeal to the House of Lords it was held that, as the jury heard evidence of the Plaintiff’s reputation as it was before the libel, they may make such award as they see fit.

          4. The Old Boy

            It would of course be possible for a jury to consider the plaintiff’s reputation and to award nominal damages if they find the statement to be defamatory.

          5. Actio non Accrevit

            Section 31 Defamation Act 2009:-

            “The defendant in a defamation action may, for the purposes of mitigating damages, give evidence

            (a)with the leave of the court, of any matter that would have a bearing upon the reputation of the plaintiff, provided that it relates to matters connected with the defamatory statement.”

            The section could have been framed a bit more widely…

          6. Actio non Accrevit

            Indeed.

            Though I was thinking more of ‘connected with the defamatory statement’, which appears quite narrow.

            There might be an argument, if you know Denis O’Brien is going to sue you over something you publish, for framing the statement in such a way as to try to make sufficient connection with Moriarty, so you could bring this in in mitigation. A high risk strategy, and one which would require considerable skill. And it could backfire. And of course you’d still be liable for the costs if you lost on the defamatory element. But it would be interesting to see it tried.

            I doubt the statement in this case was sufficiently connected to Moriarty to get that Report in.

            Refreshing to see some legal discussion that goes beyond the ‘Michael McDowell knows a lot of law’ level. I’m sure he does, but that’s not the point really, every case has different perspectives and it’s a good exercise to examine them counter-factually.

          7. The Old Boy

            It might be feasible, especially if you had a fat libel budget like the News of the Screws during the golden age of Fleet Street.

            I agree that it would be interesting, but I can’t see that sort of advice being given at publication stage. “I think you could lose, but at least if you do, you mightn’t lose so badly if you frame it like this” might elicit a few choice words from the editor.

          8. Actio non Accrevit

            Although if the person being defamed controlled a rival publication, there might be some benefit in taking the risk…

            Don’t forget the McGee case legalising contraception in Ireland was very carefully ‘set up’ before trial. The perfect plaintiff – a married women with multiple children and health concerns.

            At least we know no one set Denis up here. Else they’d have framed the defamatory comment more widely to incorporate Moriarty mitigation evidence..

          1. Conall

            I’ve never heard such rubbish, do you really think financiers/backers care about what people say about businessmen as opposed to celebrity endorsees. He’s hardly David Beckham.

          2. Ian-O

            I have a very strong suspicion.

            But I have neither the time nor the funds to express that opinion openly!

          3. Frilly Keane

            Fair enough

            But I wouldn’t be surprised if ratings agencies, analysts, the more conservative institutional investors, even listings/ exchange rules required a certain level of probity.

          4. Conall

            Well I would be very surprised given the extent of the borrowings of Denis O’Brien most of which were acquired post Moriarty Report!!

            If they cared about probity they’d have taken the trouble to read and digest it, it’s all there.

  2. johnny

    Agreed great reporting and coverage Broadsheet/Bodger and Olga-thank you for providing this public service FREE.
    Really enjoyed following it,i’m not obsessed,i’m not……
    All joshing aside i genuinely am not,im not,I only provide coverage on Digicel and the above illustrates why there is a ‘gap’ in the Irish media’s reporting:)
    Nice work Olga.

  3. Emily Dickinson

    Funny, hardly a peep out of RTE about the case. And zero follow up on the mysterious collapse of the Hutch trial. Meanwhile we’re getting endless real-time, blow-by-blow accounts of every trivial detail in the Johnny Moonlight proceedings. Strange how one case can be considered of epic public interest while everything else gets completely ignored.

  4. rotide

    CLICK… FOR… MORE PLEASE

    Just for those of us who don’t give a fig what DOB’s latest antics are

    1. johnny

      -so why have you been hounding and harassing me on here then, for someone who supposedly doesn’t give a fig, you harass and harrang other commentators who do a lot.
      -or is just that your a miserable oul fella, with nothing else or better to do?

      1. rotide

        Because you manage to turn every subject under the sun into DOBPorn.

        and also because you live a fantastic fantasy life jetsetting across america.

        1. Johnny

          Jetsetting how quaint:)
          Haven’t heard that term in awful long time,where’s it from the 70’s ?
          Should I apologize for my life-believe it is not I actually never bring it up-you and one two others do.
          What this case illustrates is the need for someone/anyone to provide coverage on Digicel,I’m safe in USA-DOB hasn’t a chance in a US courtroom as POTUS,during his campaign thrashed his rep over the Clinton connections.
          That’s why I can and do provide some coverage-not because I’m “obsessed” could care less about him.
          Anyway who told you about the jet:)

      1. rotide

        Giggidy, not everyone reads on mobile devices. This article is approximately 12 parsecs in length when views on the web. So to get to the articles i DO want to read, I have to scroll for a few weeks to get past it.

        1. Giggidygoo

          It’s long on the mobile thingy too. But for other articles here (that are TLDR) i don’t mind scrolling.
          Still, as I say, don’t read, don’t click. Scroll.

          1. rotide

            I had to scroll TWENTY EIGHT TIMES to even get to the first comment here. Add another 4 scrolls just to get to you telling me to ‘just scroll’.

            You win this weeks “I have no idea what I’m typing” award, giggidy. Congrats!

        2. Frilly Keane

          Ah you’re just whinging for the sake of it

          Like the Plaintiff in this case is usually pictured in the opener anyway

          So there’s no guessing what’s under the link

          So if you’ve eff all interest in
          The Plaintiff

          Don’t stick a fork into the toaster
          Cheeze t’night

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