Lowry loses High Court action

Independent TD for North Tipperary Michael Lowry has lost his High Court bid to secure a summary ruling in a defamation case over comments by journalist Sam Smyth which, the TD claimed, wrongly meant he was a thief.

Mr Smyth had denied words used by him during an appearance on the TV3 show Tonight with Vincent Browne meant Mr Lowry was a thief but said he did believe the politician was a liar and tax cheat.

He also denied he defamed the politician in an Irish Independent article concerning the Moriarty tribunal investigating certain property transactions to which it felt Mr Lowry was linked.

The President of the High Court, Mr Justice Nicholas Kearns today rejected Mr Lowry's claim he was entitled to a summary order under the new Defamation Act 2009 on grounds Mr Smyth had no arguable defence to the alleged defamation.

"On the contrary, it seems clear the defendant (Mr Smyth) has a good arguable case in respect of both publications," he said. He also awarded costs against Mr Lowry in both the High and Circuit Courts.

Mr Lowry brought his application over comments by Mr Smyth on the Vincent Browne Show broadcast on June 24th, 2010 relating to the work of the Moriarty tribunal.

Mr Lowry alleged he was defamed by Mr Smyth saying: “But the first we caught sort on video with hand in till was Michael Lowry and he resigned....”

Mr Smyth denied defamation and said he was referring to Mr Lowry being engaged in tax fraud and, inappropriately in the context of a senior politician such as Mr Lowry then was, having your bills picked up by a businessman.

Mr Lowry also alleged defamation in an article written by Mr Smyth and published in the Irish Independent on May 27th 2010 under the headline "Tribunal will reveal findings on money trail to ex-Minister".

Mr Smyth referred in that article to the Moriarty tribunal investigating property transactions, in the context of its inquiries into the 1995 mobile phone licence competition, and stated: "The total value of all the property transactions involving Mr Lowry was around STG £5 million."

Mr Lowry claimed that sentence meant he had unlawfully benefitted from transactions concerning property valued at STG £5 million by awarding a mobile phone licence while he was minister for communications and suggested he was a corrupt politician and unfit for public office.

"This accusation is false and constitutes a grave defamation on my character." he said in an affidavit.

The TD appealed to the High Court against the February 2011 decision of Circuit Court Judge Margaret Heneghan refusing a summary ruling under the 2009 Act to the effect the comments by Mr Smyth were defamatory, Mr Smyth had no reasonable defence to advance and an order for a correction should be made.

Mr Smyth's lawyers argued, when an application brought under the Act is refused, the applicant cannot take any other proceedings alleging defamation.

If an application for a correction/prohibition order succeeds, the applicant cannot seek damages in addition to such orders, they also argued.

Judge Heneghan had said she had read the alleged defamatory materials and materials attached to Mr Smyth’s affidavit, including matters to do with the McCracken and Moriarty tribunals; Mr Lowry’s dealings with Dunnes Stores and his personal statement to the Dáil in 1996 after his resignation from cabinet.

Mr Lowry's lawyers argued, following a Supreme Court decision that tribunal reports cannot be used as evidence in criminal proceedings, Mr Smyth was not entitled to rely on material from tribunals in his defence to the claim of defamation.

Today, Mr Justice Kearns said, it seemed clear, following the Supreme Court findings, that tribunal reports cannot be admitted as evidence in defamation cases or civil proceedings.

However, tribunal hearings and findings could be reported upon by the media and tribunal findings may provide "a roadmap or trail" for other bodies or persons with an interest in the subject matter of the tribunal inquiry, whether that be the Oireachtas, the DPP or private litigants, he said. Without that, the function of tribunals would be "nugatory and pointless".

To the extent Judge Heneghan had regard to the tribunal material as "evidence", hearsay or otherwise, upon which she could rely to reach her decision, she would have been in error, he said.

However, to the extent she had regard to the tribunal material, as pointing to potential sources of evidence to which Mr Smyth, quite apart from tribunal findings, could resort to formulate a defence, she was "entirely correct".

The Circuit Court judge could not have granted the summary order sought unless she was satisfied Mr Smyth had no defence and she could not have been so satisfied, Mr Justice Kearns said.

He believed a roadmap had been disclosed in the tribunal reports which was indicative of how and in what way Mr Smyth could marshal his defence without being forced to rely on tribunal findings.

In relation to the alleged defamation on the Vincent Browne show, he was satisfied Mr Smyth was entitled to argue the words "hand in till" may be taken as referring to tax fraud and bills inappropriately picked up for the benefit of Mr Lowry by business interests, the judge said.

The fact Dunnes Stores paid €395,000 to the contractors who refurbished Mr Lowry's home in Co Tipperary and Mr Lowry was availing of offshore accounts to receive other payments were also matted which could be established in evidence other than exclusively through tribunal findings, he said.

In relation to the newspaper article, it was open to Mr Smyth to argue that to report the mere fact a tribunal is investigating a person's possible involvement in a series of property transactions with a possible link to the awarding of a mobile phone license was not necessarily defamatory per se, he said.

It was open to Mr Smyth to report and comment on the fact the Moriarty tribunal was following a "money trail" in certain property transactions to which it felt Mr Lowry was linked and which had a combined value in the region of STG £5 million.