Journalists covering court cases often get nervous when a jury is about to deliver its verdict. Mostly it’s because we know that while the decision will bring an end to the proceedings for the anxious parties waiting in court, for us it means the real work is just about to begin. On Friday afternoon, however, sitting beside my colleague from the Sunday Business Post in court number 25, there was a feeling that there was something more than usual at stake.
The jury had been told by Mr Justice Bernard Barton that there was "a big conflict" between the sides in this trial. The newspaper wanted the case "thrown out on its backside". Denis O’Brien claimed the articles published in March 2015 were defamatory and his lawyers told the jurors they should award "substantial damages" to reflect the seriousness of the allegations.
Damages are the only way a plaintiff in a defamation action can seek redress. But it is possible that request didn’t go down well with a jury who were later told by Mr O’Brien that he could have written a cheque to pay off the hundreds of millions of euro he owed to Anglo Irish Bank in 2008, in one go, if he’d had to.
Mr O’Brien was in court for almost every day of the 17-day case, which began on 5 February. He is no stranger to the Four Courts. As former business editor of The Sunday Business Post, Tom Lyons said in his evidence, the newspaper thought hard about including him in the disputed articles, partly because they knew Mr O’Brien "sued a lot of journalists".
I’ve now seen him give evidence in three High Court cases, going right back to November 2006 when a jury awarded him damages of €750,000 for a defamatory article in the Irish Daily Mirror. In that case, he was cross examined rigorously by lawyers for the newspaper. This was three years after Mr O’Brien had been centrally involved in the Special Olympics World Games and jurors awarded him three times the amount of damages originally deemed excessive by the Supreme Court.
In 2013, he was awarded €150,000 in a defamation action against the Irish Daily Mail. This time around, however, the jurors did not have the same sympathy for him.
"Again and again, Mr O’Brien told the court he was the "odd man out" in the articles"
Before the case began, Mr Justice Barton described Mr O’Brien to potential jurors as "notorious". He later clarified that he did not intend his use of that word to connote anything negative. He meant merely that Mr O’Brien was not just a private individual but was someone "known to the public".
Mr O’Brien began his evidence the following day. Luán Ó Braonáin, one of Mr O’Brien’s two highly experienced senior counsel, brought him through a brief resumé of his education and career – from his days running a shopping channel to his position as head of Digicel. Mr O’Brien proudly told the court they were now in 31 countries and employed 10,000 people.
He described how the articles at the centre of this case had been brought to his attention. As he left mass in Donnybrook in Dublin on 15 March 2015, he told the jurors the man he bought the newspapers from showed him a copy of The Sunday Business Post. He went to visit his father and mother who lived nearby. His father opened the door to him and said: "I see you’re being blamed for the banking crisis." He told the court his reaction was "how the hell did I end up in this list".
Again and again, Mr O’Brien told the court he was the "odd man out" in the articles. The Sunday Business Post said it was reporting the contents of a PwC report to government on Ireland’s banks. The report listed the 22 borrowers who owed most money in November 2008 and Denis O’Brien was number ten on that list. But Mr O’Brien told the jurors he should not have been listed with the others. They were all developers, he said, who had lost substantial sums of money in the financial crisis and many of them had to enter NAMA. He was different - he had paid off his Anglo Irish Bank loans and was regarded as a good borrower by AIB and Bank of Ireland. He was not a property developer he said, and should not have been "lumped in" with the others.
This was the area of his evidence lawyers for The Sunday Business Post immediately zoned in on. In his cross examination, Senior Counsel Michael McDowell put to Mr O’Brien that he had been involved in a number of developments. Mr O’Brien insisted he was not a developer but a property investor, who bought assets and held on to them for a long time.
Apart from a couple of protesters who made their views on water charges clear to Mr O’Brien as he left for lunch one day, there were few members of the public in court. Most of those watching were lawyers, who were not involved in the case, but were curious to observe the duel between Mr O’Brien and a former Attorney General and Minister for Justice.
Mr O’Brien referred to Mr McDowell’s political career on several occasions, in polite but barbed fashion. In a discussion over a person’s right to privacy in relation to their financial affairs, Mr O’Brien said he was sure Mr McDowell wouldn’t like confidential details about his fee notes or his ministerial pension to be published. He reminded the jury that Mr McDowell had been in government and also that he still writes a column for his "journalist friends" in the Business Post. Mr McDowell didn’t rise to the bait. Instead, he accused of Mr O’Brien of being "self-obsessed" and like the subject of Carly Simon’s song ‘You’re So Vain’, of believing the articles in the newspaper were all about him, when in fact they were about Ireland and the financial crisis. When Mr O’Brien said he didn’t know Mr McDowell was a music buff, the barrister replied he was a big fan of one of Mr O’Brien’s radio stations, 98FM. Mr O’Brien retaliated, telling Mr McDowell he was in second place to him in the vanity stakes.
The verbal sparring went on all week but towards the end of the cross examination Mr O’Brien handed Mr McDowell valuable ammunition to cast doubt on his credibility as a witness. Firstly, Mr O’Brien claimed that if the editors of The Business Post, Ian Kehoe or Tom Lyons, had run the articles by the then chairman, Conor Killeen, whose company Key Capital owned the newspaper at the time, Mr Killeen would have told them not to publish the material. In a debate about the power of media owners to influence editorial decisions, Mr O’Brien claimed he had a letter from Mr Killeen in which he stated that he had ultimate editorial control over The Sunday Business Post.
"Michael McDowell repeatedly asked the jurors who was more likely to be telling the truth - Mr O’Brien or the journalists?"
Mr O’Brien also claimed an article written by Tom Lyons three years previously in 2012 for the Sunday Independent was overseen by good editors. This article outlined Mr O’Brien’s loans with Anglo Irish Bank and described him as one of 13 "buccaneer borrowers". Despite Mr McDowell’s explanation of the word buccaneer as a "pirate, originally operating in the Caribbean", Mr O’Brien claimed he did not mind being so described. However, the next day he came back into court and said his spokesman James Morrissey had reminded him that he had in fact done something about this article. He said he believed he had received an apology about it.
Neither a letter from Conor Killeen nor an apology from the Sunday Independent were produced to the court. In fact, Mr O’Brien’s solicitors wrote to representatives for the Sunday Business Post and said they had no reason to believe there was ever an apology about the 2012 article, in any form. In his hard-hitting speech to the jury, Mr McDowell urged them to throw the "disgraceful" case out in its entirety. He repeatedly asked the jurors who was more likely to be telling the truth - Mr O’Brien or the journalists?
But the closing speech by Mr O’Brien’s own legal team was equally pointed. Senior Counsel, Paul O’Higgins said Mr McDowell’s address to the jury was "not devoid of words" but very few of them had to do with subject matter of the case. Mr O’Higgins’ speech focused more specifically on the meanings of the articles the jury had to address in their verdict. He also criticised Sunday Business Post journalists for failing to keep any record of the PwC report, describing its destruction as "an extraordinary thing to do".
"It didn’t seem likely that the case had been "thrown out on its backside" as the jurors had been deliberating so long"
The jurors had up to nine questions to answer in their decision. Questions one through to six focused on the meanings of the articles and whether or not they were defamatory - if they found they were not, that was the end of the case. If the jurors found Mr O’Brien had been defamed, they had to go on to consider the newspaper’s defence of fair and reasonable publication on a matter of public interest. If they rejected that defence, they could consider an award of damages. Mr O’Brien’s side claimed the articles were published maliciously and urged the jury to go further and award punitive damages.
By the time they retired to begin deliberations at lunchtime on Thursday, even veteran court observers had no idea which way the jury would go. At 5pm, the jurors emerged to ask what exactly the judge meant by asking them for a "unanimous" decision and to tell him they were mentally tired and wanted to go home.
The following lunchtime, they told the judge they had been through the questions twice and would not be able to reach unanimous verdicts. He directed them they could bring in majority decisions on which at least nine of them agreed but explained that the same nine or ten people must agree on all the answers. Journalists observed enthusiastic head nodding from the jurors and began to hope a verdict was imminent.
As the hours ticked by on Friday afternoon, however, those in court became more pessimistic about a definitive decision. Analysis of jurors’ body language and the foreman’s language became more intense as attempts were made to predict the outcome.
It didn’t seem likely that the case had been "thrown out on its backside" as the jurors had been deliberating so long. Had Mr O’Brien won? Could the jury have decided to award only a small amount of damages? Journalists spoke of the previous day’s decision where an award of €10m from a jury in a defamation case was reduced by the Court of Appeal to €250,000. Surely that was as high as this jury would go? Or were they unable to reach a decision and would we have to do this all over again?
"Ian Kehoe said the case wasn’t just about the Sunday Business Post, it was about the right of every media organisation in the country to publish what was genuinely in the public interest"
Finally just before 4pm, word came through that there was a verdict. Lawyers rushed into court and threw back on their gowns. Tom Lyons and Ian Kehoe sat stoically in their seats. James Morrissey and other longtime advisers of Mr O’Brien’s arrived, but there was no sign of the businessman himself.
For 10 minutes the packed room was tense and silent as those inside waited for Mr Justice Barton. Ian Kehoe solemnly shook hands with each member of the Business Post’s legal team. Everyone was aware of the implications of the possible verdicts.
When the jury foreman handed the issue paper to the judge, he seemed to take a long time to read over it. Finally, he started speaking. The jurors had decided the articles did not mean Mr O’Brien was among the borrowers most to blame for the destruction of the Irish banking system and the bail out, they did not mean he received cheap and easy money due to improper influence and they did not mean Mr O’Brien had tried to suppress the PwC report.
He came to question 4. The jury answered yes, the articles meant Mr O’Brien’s borrowings were telling and disturbing. The next part of this question was crucial. If the jury found that this had defamed him, Mr O’Brien’s case was still alive. Again Mr Justice Barton paused for a considerable time. Was this defamatory? "The jury has answered no", he finally declared. It was the same for the final questions. The articles meant Mr O’Brien was massively overstretched and faced huge financial pressure in November 2008, the jury found, but these meanings were not defamatory.
It was over. There was obvious relief in the courtroom from the Business Post’s team and from many other journalists as well. Post Publications’ CEO, Siobhan Lennon dabbed her eyes and declared she was too emotional to make a statement. Almost unnoticed, Mr O’Brien’s spokesman, James Morrissey, left the courtroom quickly and headed off down the quays. Followed by RTÉ Courts Reporter, Vivienne Traynor, he said Mr O’Brien was out of the country and not yet aware of the result and he declined to comment.
The Public Interest
Ian Kehoe and Tom Lyons left a short time later. Mr Lyons said they stood up to Mr O’Brien, told the truth, and did the right thing. Mr Kehoe said the case wasn’t just about the Sunday Business Post, it was about the right of every media organisation in the country to publish what was genuinely in the public interest and of public importance.
That public interest may have been a key factor in the jury’s decision. As Mr O’Brien gave his evidence at the beginning of the case, he spoke about the fact that just to be called a developer could be defamatory in 2015. People were hurt, he said, they had been put through austerity and salary cuts or they had lost their jobs because of what had happened.
In that much, he was correct. Ten years after the financial crisis first struck, Irish people are acutely aware of and extremely knowledgeable about the impact of the collapse of the banking system. It would be difficult to find a potential juror who could be persuaded that the publication of a report about Irish banks and their borrowers, which the Government had failed to publish for seven years, was not in the public interest.
The effects, if any, of the jury’s decision will be interesting. Will potential litigants think twice about suing a media organisation – particularly where the organisation concerned has a strong case to argue that the publication was for the public benefit on a subject of public interest? Will Mr O’Brien himself be less enthusiastic about heading to court in future? And will he take the advice of the NUJ’s Irish secretary, Seamus Dooley, and make much less costly complaints to the Office of the Press Ombudsman instead?
As the losing party, he must pay the costs of this case, estimated by some sources at up to €1m. It’s not yet clear if he will appeal – his legal team would need to identify a serious flaw in the judge’s charge to the jury or in his conduct of the trial in order to bring such an appeal. There would need to be compelling reasons to persuade an appeal court to overturn a jury’s decision in a case like this.
Lawyers on his behalf will be back in court on Tuesday, again as a result of events that happened in 2015. The Supreme Court, sitting in Galway, is due to give its decision on Mr O’Brien’s challenge to the dismissal of his action over statements made in the Dáil in April that year about his banking affairs. Mr O’Brien’s appeal centres on how the Dáil’s Committee on Procedure and Privilege dealt with the statements and his complaints. He says the High Court was wrong to find that the Constitution did not allow it to rule on how the Committee acted. And he also appealed a ruling that the case was not novel enough to depart from the usual rule that the losing party should pay the costs.
In light of this week’s Supreme Court decision in the Angela Kerins case that the courts, in certain circumstances have the power to intervene in relation to the actions of a Dáil committee, Mr O’Brien may be hoping for a better result from the seven Supreme Court judges on Tuesday than the one he has just received from 11 ordinary members of the public.