uusinessman Denis O’Brien going into the High Court this morning
This afternoon, in the High Court, businessman Denis O’Brien finished giving evidence in his defamation case against the Sunday Business Post.
Mr O’Brien is claiming he was defamed by the newspaper on March 15, 2015, when the then business editor Tom Lyons reported over six pages on an unpublished PwC dossier into Ireland’s banks which had been given to the then Taoiseach Brian Cowen in November 2008.
The newspaper reported that the PwC report revealed 22 men and their associated companies owed Irish banks €25.6billion when the property bubble collapsed.
Mr O’Brien was number ten on the list of 22.
One of Mr O’Brien’s complaints is that he was wrongly “lumped” in with a “gang” of “developer kings”.
He also disputes the figures which Mr Lyons attributed to Mr O’Brien and has said Mr Lyons should have rang him on the Friday before the article was published and asked him if he was “overstretched” or if he had “over borrowed”.
Mr O’Brien has claimed Mr Lyons never put these specific claims to him.
The jury in the High Court last week heard about a separate article Mr Lyons co-wrote with Nick Webb in April 2012, while he was working at the Sunday Independent, which was about a different PwC report on Anglo Irish Bank, and which Mr O’Brien also said contained incorrect figures.
The print article was headlined: “Anglo’s top 13 buccaneer borrowers.”
Mr O’Brien, on Thursday, told the court that he believed he had taken no action over this 2012 Sunday Independent article which revealed his confidential bank details.
On Friday, Mr O’Brien then told the jury that, contrary to what he had said the day before, his understanding was that his spokesman James Morrissey had actually engaged in lengthy correspondence with the Sunday Independent over the 2012 article and that he had, he believed, received an apology from INM’s then group managing editor Michael Denieffe.
But this morning, the jury heard this apology had nothing to do with the article co-written by Mr Webb and Mr Lyons in 2012.
Michael McDowell SC, for the Sunday Business Post, read out correspondence between Mr Lyons and Mr Morrissey ahead of the 2012 article in which Mr Lyons sought to get some information from Mr O’Brien to put into the article.
Mr O’Brien agreed with Mr McDowell that the response from Mr Morrissey was essentially a “get lost” response. But Mr O’Brien said it was “polite”.
Mr McDowell also read out correspondence between Mr Morrissey and Mr Webb after the article was published.
Mr Morrissey had criticised Mr Lyons in his correspondence to Mr Webb and claimed Mr Lyons had acted unprofessionally.
Mr McDowell said this amounted to an “attack” on Mr Lyons.
Mr O’Brien said: “No it was pointing out the obvious.”
He said it was “ridiculous” to pose questions about his banking in the first place as he was never going to give any answers.
Mr McDowell put it to Mr O’Brien that this represented the “height of hypocrisy”.
Mr McDowell said Mr O’Brien previously “went to some considerable length” in his evidence to say that the Sunday Business Post never contacted him about Mr Lyons’ story in 2015.
Mr McDowell asked how he could “reconcile” telling Mr Lyons and Mr Webb to “get lost” in 2012 with his criticism of Mr Lyons in 2015, saying the journalist didn’t contact him for comment – when Mr O’Brien would never have commented anyway.
Mr O’Brien said he was glad Mr McDowell mentioned the matter and again said Mr Lyons should have contacted him on the Friday evening before the Sunday Business Post article, and asked him specifically if he was “overstretched” and if he had “over borrowed”.
But when Mr McDowell asked him again if he would have responded to Mr Lyons, Mr O’Brien said: “The answer is no.”
Mr O’Brien said Mr McDowell was “mixing apples and oranges”.
Mr O’Brien said: “Why would any citizen of this country answer questions about their bank accounts?”
“Why would anyone discuss their private banking matters with a journalist… you’d want a bolt missing from your head to do that.”
He said it was “none of his business” and that if Mr Lyons asked him about this “visa card”, the answer would be the same: “It’s private”.
Going back to the 2012 Sunday Independent article, and the correspondence between Mr Morrissey and Mr Webb, in which Mr Morrissey accused Mr Lyons of being unprofessional and conducting himself in an unacceptable manner, Mr McDowell put it to Mr O’Brien that he was now “whinging” in the High Court claiming he had been defamed when he was “quite happy to defame somebody else in correspondence”.
Mr McDowell put to Mr O’Brien that he was accusing Mr Lyons of unacceptable and unprofessional behaviour because he didn’t put a specific figure [about his banking] to Mr O’Brien – a figure he never intended on confirming, denying or correcting.
Mr O’Brien replied: “That’s correct.”
Mr McDowell put it to the Mr O’Brien: “You’ve told the jury that you wouldn’t answer the question.”
Mr O’Brien replied: “Whether the number was right or wrong, I wouldn’t have answered it.”
Mr McDowell put it to Mr O’Brien that it was “utterly dishonest” of Mr Morrissey to defame Mr Lyons to his employers for failing to put an exact figure to Mr O’Brien when he knew Mr O’Brien wouldn’t comment.
Mr O’Brien said Mr Lyons got the wrong number and he shouldn’t have published any figure if it was inaccurate.
Mr McDowell put it to Mr O’Brien that he didn’t see the PwC report on Anglo Irish Bank which the Sunday Independent article was based upon.
Mr O’Brien confirmed this.
McDowell put it to Mr O’Brien that he then couldn’t have known if Mr Lyons quoted accurately from the PwC report or not. Mr O’Brien said: “No”.
Asked again why he believed Mr Lyons had been unprofessional in his conduct, Mr O’Brien replied: “Because he published the incorrect information.”
Asked again why he didn’t give any information to Mr Lyons, following on from his requests, Mr O’Brien replied: “Because it’s none of his business.”
Mr O’Brien repeated again that to ask about his banking affairs is “grossly unfair” and an “invasion of privacy”.
Mr O’Brien said whether the figure was right or wrong, he wouldn’t have commented on it.
Asking Mr O’Brien how wrong the Sunday Independent figure was, Mr O’Brien wouldn’t say and asked Mr McDowell if he was now trying to invade his banking details.
Mr O’Brien carried on refusing to tell Mr McDowell “how wrong” the figure in the Sunday Independent was.
He said: “I don’t mean to be rude but it’s my private banking matters. I have a right to privacy as a citizen, it’s grossly unfair.”
Mr McDowell further read out the response Mr Webb sent to Mr Morrissey in 2012 and into which he copied Declan Carlyle, who was an executive at INM at the time.
The jury heard Mr Webb told Mr Morrissey that his claim Mr Lyons had acted unprofessionally was “completely unacceptable” and that it was being rejected out of hand. Mr Webb said it was “baseless” and “defamatory” of Mr Lyons.
Mr Webb also said it was a “disgraceful slur” on Mr Lyons and he asked that Mr Morrissey “desist from disseminating this defamatory material forthwith”.
The jury also heard Mr Webb told Mr Morrissey that Mr Lyons had acted as he should have and it was he [Mr Morrissey] who gave “perfunctory answers”. Mr Webb asked Mr Morrissey if he’d like to send figures, they could run a clarification.
Mr O’Brien told Mr McDowell that he believed the latter comment was said “tongue in cheek”.
Mr McDowell asked Mr O’Brien if he had seen Mr Webb’s correspondence, in which he accused Mr O’Brien, via Mr Morrissey, of defaming Mr Lyons.
Mr O’Brien said he did.
Mr McDowell then asked Mr O’Brien how he then could have given evidence that he had got an apology from Mr Denieffe over the 2012 Sunday Independent article.
Mr O’Brien said: “Because Mr Morrissey told me that.”
Mr O’Brien said the correspondence in relation to Mr Denieffe was related to an entirely different matter. He said he had apologised to the court, that he was trying to be helpful last week and that he may have confused matters further – for which he was sorry.
Mr McDowell put it to Mr O’Brien that he must have known there was no apology over the 2012 article.
Mr O’Brien said that, last week, he said he wasn’t sure about the apology and that he had said he would have to check – which he has since done and that is why Mr McDowell’s solicitor had been contacted about the matter overnight.
Mr McDowell said that, far from INM giving an apology to him, they [INM] gave him “both barrels” over to the suggestion Mr Lyons had behaved wrongly.
Mr O’Brien said: “I’m saying to you there was another matter and other correspondence which led to an apology.”
He also again repeated that Mr Lyons had no right to ring anybody up and ask them about their private banking matters.
He said it wouldn’t happen in the UK and it shouldn’t have happened in Ireland.
He said it was “extraordinary that this journalist would be that ballsy” to ask about his banking and then, Mr O’Brien claimed, get the numbers “wrong”.
Mr McDowell put it to Mr O’Brien that he was refusing to divulge “how wrong” Mr Lyons was alleged to have been. He also said it was in the public interest to know about the insolvency of Anglo Irish Bank.
Mr O’Brien said it was his private business and said “we’re verging on voyerism, trying to find out what my banking details are, it’s not fair”.
Mr McDowell said the following to Mr O’Brien: “I’m going to put to you now that the fact that Anglo Irish Bank, at the time the PwC report was done, was hopefullsesy insolvent but pretending that it was solvent through the agency PWC report.
He added: “You were among the top 22 debtors of the Irish banking system at the time and one of the top 13 in Anglo Irish Bank, for which the taxpayer was going to carry the burden afterwards. Are you saying that that was an entirely private matter?”
Mr O’Brien said he was never a burden on any bank or IBRC, formerly Anglo Irish Bank.
He added: “I became a customer of IBRC in 1990. I’m not responsible for them going into liquidation.”
Mr McDowell said Mr Lyons believed, and still believes, that the Irish public deserved to know that a huge amount of indebtedness was concentrated on a small number of people.
Mr O’Brien said they were going to disagree on this.
At one point Mr Justice Bernard Barton intervened to say the jury needed to fully understand a point which was being made by Mr McDowell.
Mr McDowell told Mr O’Brien he made a very serious complaint against Tom Lyons and his professional conduct in a letter, for failing to put a figure to Mr O’Brien – a figure which Mr O’Brien has since claimed was wrong, without now telling the court how wrong it is.
And, Mr McDowell said, Mr O’Brien is now complaining that he wasn’t contacted in 2015, in relation to the Sunday Business Post article, even though he would have likely said ‘no comment’.
Mr O’Brien said his first complaint is that Mr Lyons should never have published any number and, secondly, the figure that he did publish was “absolutely wrong”.
Mr O’Brien went on to compare the Sunday Independent and Sunday Business Post articles and said it was totally different to be called a “buccaneer” [in Sunday Independent] as opposed to being referred to as a member of a “gang” [in Sunday Business Post].
Mr McDowell read out the Oxford dictionary definition of “buccaneer”:
“A pirate, originally one operating in the Caribbean. A person who acts in a recklessly adventurous and often unscrupulous way, especially in business”.
Mr McDowell continued: “Are you seriously saying ‘buccaneer’ in the Sunday Independent was more complimentary than ‘gang’ in the Sunday Business Post?”
Mr O’Brien said he was. He said ‘buccaneer’ is the name of a sporting club in Galway and “not a derogatory term in my mind”.
He went on to say there was “no comparison” between the two articles and to compare them was like comparing “chalk and cheese”.
Mr McDowell also listed Mr O’Brien’s property interests in Ireland, the UK, Portugal and Spain – following on from Mr O’Brien giving evidence that he is not a property developer but a property investor.
At one point, Mr O’Brien quipped that Mr McDowell knew more about his property interests than he did.
Mr McDowell said he was depending on information in the public domain and Google.
Returning to the 2015 Sunday Business Post article, Mr McDowell put it to Mr O’Brien that, in 2008, PwC prepared a report for the Irish Government in which they indicated, among other things, first of all that the banks were claiming to be in rude health.
Secondly, in the report, PwC put together a list of 22 – not 21, not 23 – of people who they said were the top borrowers from the Irish banks.
Mr O’Brien said: “We don’t know this because I’ve never seen the PwC report.”
He said the court is “naked here today” because Mr Lyons destroyed his copy of the report after publication of his article.
Mr O’Brien claimed PwC would also never have used the words used by the newspaper to describe him.
Mr O’Brien said the article was a “hatchet job” and became “more salacious” as it continued over a number of pages in the newspaper.
Just before Mr O’Brien finished giving evidence, the judge again asked Mr O’Brien if it was his position that he basically told the Sunday Independent to get lost in 2012.
Mr O’Brien agreed this was the case and said his banking affairs were none of Mr Lyons’s business.
The judge asked Mr O’Brien if he would have taken the same approach if Mr Lyons contacted him in respect of the Sunday Business Post article.
Mr O’Brien said it would have depended on the question.
He said if he was told he would be described as a property developer and someone who had a detrimental effect on the country, that he was “overstretched”, he would have said that wasn’t true.
Mr Lyons has started to give evidence this afternoon.
Asked by Mr McDowell if he [Mr Lyons] believed that Mr O’Brien could have “brought down the country” when he wrote his article in the Sunday Business Post in 2015, Mr Lyons said: “No that’s ridiculous, no individual could bring down the country. That’s just ridiculous.”
Of his story based on the 2008 PwC report in the Sunday Business Post in 2015, Mr Lyons told the jury it was something which was “incredibly serious”, of “huge public interest” and that the newspaper took the matter “very, very seriously”.
He also said the list was created by PwC and the sequence of people was put together by PwC.
Asked why the Sunday Business Post reported the names of the 22 borrowers and their indebtedness contained in the 2008 PwC report, Mr Lyons said: “We felt that this was demonstrative of the concentrated risk in banks.”
He said it showed the banks were lending too much to too few people.
Asked if this was his judgement or PwC’s, Mr Lyons said it was PwC’s.
In relation to Mr O’Brien’s view that his banking interests are his private affairs and not of public interest, Mr Lyons recalled that Mr O’Brien mentioned his credit card details but went on to say this is not what the Sunday Business Post was reporting on in 2015.
Mr Lyons said he “couldn’t care less if Mr O’Brien pays for Netflix or Sky”.
He said the PwC report was about “big picture numbers” and that the report was paid for by taxpayers which the Government “used to say we’re not in trouble, let’s go with the banking guarantee, everything’s fine”.
He said the context of the report was the biggest financial crisis in the world, not just the biggest financial crisis in Ireland.
Mr Lyons said he accepted Mr O’Brien’s view but, in his opinion, the PwC report was an “important document prepared by the State into what happened in the banks and public interest trumps one man’s opinion”.
Mr Lyons also said that he and his editor Ian Kehoe did have a conversation about whether or not they should have included Mr O’Brien’s name in the list.
He said: “But we said either it was in the public interest or it wasn’t. He [Denis O’Brien] was in there, we had to leave him in there.”
He said the debate over whether to publish Mr O’Brien’s name or not came about because “it’s fair to say, he sues a lot of journalists”.
Mr Lyons said there was a “fear factor there around him”.
But, he said himself and Mr Kehoe decided: “no, we’ve got to be brave here, we’ve got to include him”.
He said they couldn’t leave Mr O’Brien out and treat him as a special case over any possible fears that to include him would harm their future careers.
To further contextualise his point, Mr Lyons looked directly at Mr O’Brien when he said, by way of an example, this could have been a real fear if he were to ever potentially go back to work in either Newstalk or Today FM – radio stations which are both owned by Mr O’Brien.
Mr Lyons said the newspaper “reported faithfully” what was in the PwC report.
The court has heard that the banking inquiry, which was taking place at the time of the publication of the Sunday Businss Post article in 2015, requested of Mr Lyons a copy of the PwC report.
But, at this point, Mr Lyons had already destroyed it, to protect his source.
Asked if he was surprised when the inquiry asked him for the report, Mr Lyons said:
“It did surprise me. I had this suspicion they hadn’t got it. It was a gut instinct. But when it came out that they hadn’t got it, I was very surprised.”
The case continues.
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