MR ALBERT Reynolds's award of zero damages in his libel case against the Sunday homes was altered by Mr Justice French to one penny in the High Court in London yesterday.
This opens the way for Mr Reynolds to contest paying the newspaper's legal costs up to the paying in of £5,005 by the paper on September 20th. Legal argument on this took place yesterday, and Mr Justice French will rule on it today.
On Tuesday the jury found, by a majority of 10 to one, that the Sunday Times had libelled Mr Reynolds by alleging that he had lied to the Dail and his Cabinet colleagues. But they found that the Sunday Times journalists had not acted maliciously, and they awarded him "zero" damages.
Arguing that the jury was legally wrong to bring in an award of zero damages, Mr Andrew Caldecott QC, counsel for Mr Reynolds, said yesterday: "Damages presume once the publication of a libel is proved. The jury's award should be treated as an award of one penny, the minimum award that the presumed damages must give rise to." However, Mr James Price QC, counsel for the Sunday Times said there was "no cause or warrant" for the judge to interfere with the jury's judgment.
Mr Caldecott said that no one had told the jury they should enter an award of no damages. To enter an award of no damages was not in line with legal principles.
Ruling that Mr Reynolds should be awarded one penny damages, Mr Justice French said: "The jury's answer to the first question means that Mr Reynolds has been defamed. Notwithstanding the answer to the fourth question I consider that he is entitled to nominal damages of one penny." Legal arguments then continued on who should pay the Sunday Times's costs up to the time it paid £5,005 in to the court.
These costs, of preparing the trial, could run to as much as £200,000, though Sunday Times sources said it had not yet calculated them in full.
Mr Reynolds accepts that he should pay the Sunday Times's costs, as well all his own, from September 20th. These are likely to run to more than £800,000.
"We can't overlook the fact that the jury chose to award Mr Reynolds no damages," said Mr Price. "An award of nought pence or one penny does not represent a victory for Mr Reynolds, who asked for an award of between £45,000 and £125,000. Five and a half weeks were spent by the plaintiff to obtain a verdict of zero pence and a judgment of one penny.
"It is my submission that there is no practical difference between those figures. To argue that there is a difference between nought pence and one penny is legal argument carried to the point of leaving this planet if not this galaxy, instead of good old feet on the ground English common sense.
"For the plaintiff to get his costs he had to show he obtained at the hearing something of value, like an injunction, he would not otherwise have got, not words of comfort in the verdict or the judgment of the judge.
"The explanation for the jury award is that the allegations are so nearly true that ignominious damages would suffice."
Lord Gareth Williams QC, for Mr Reynolds, pointed out that he was not arguing that the defendants should not have their costs after the paying in of the £5,005.
"Each party should pay their own costs before the date of the payment in," he said.
In response to a question about what the defendants could have done apart from the paying in, he said they could have made the payment on receipt of the writ and statement of claim, and offered an apology and a retraction, "so that Mr Reynolds would have been in possession of an acknowledgment of the fact that the defendants could not prove their allegations against him.
"That prize was delivered by the jury when they gave their answer to question one.
"No apology or retraction has ever been offered. If an apology and retraction and £5,000 had been offered there would have been no mounting of a violently pleaded case against Mr Reynolds. He would not have had 13 months of uncertainty and aggravation.
"What Mr Reynolds wanted was a public finding that he had not been guilty of lying. It was not the only thing he wanted, but [this was] an important component of his evidence.
"We are not seeking costs for the plaintiff, only that costs should lie where they fall prior to the cut off point of the payment in.
"Did he get nothing of value he would not have got if he did not go to court? It would be a harsh legal system indeed which described that public vindication of this plaintiff as nothing of value."
Mr Price said it was not true that Mr Reynolds had got a public vindication. "No one, not even Mr Reynolds, could think he has won this case. On the contrary, he's lost it. In spades."
Mr Justice French said he would try to have his ruling available this morning.