Former mining company executive Donal Kinsella will have to repay €250,000 of a €500,000 payment he received so that a record €10 million libel award to him against the company could be appealed, the Court of Appeal has ruled.
Last month, that €10 million award to the former Kenmare Resources deputy chairman was cut to €250,000 by the court.
The case was back before the court on Thursday to deal with costs and the question of the €500,000 payment imposed on Kenmare so that it could bring the appeal more than eight years ago.
On Thursday, Paul Gallagher SC, for Kenmare, argued he should be required to pay the €250,000 in excess of the €250,000 the court awarded him. It would be “entirely unjust” if Mr Kinsella was allowed to keep another €250,000, he said.
Eoin McCullough SC, for Mr Kinsella, said there should be no order in relation to the €500,000 payment which was made more than eight years ago. There would be no particular injustice in making no order in the circumstances of the time and of a previous similar case, he said.
Ms Justice Mary Irvine, on behalf of the three-judge court, said the court was satisfied there would be a grave injustice to Kenmare and she directed the repayment of the €250,000.
Mr Kinsella had had the benefit of the entire €500,000 for more than eight years, she said.
The court said there would be a stay on the repayment order to allow Mr Kinsella to consider whether he wants to seek an appeal against the court decision on repayment to the Supreme Court.
The court also awarded the costs of the appeal to Kenmare and its chairman, Charles Carvill, who was also sued, but limited it to one day's hearing costs.
Mr Kinsella was entitled to his costs in relation to his successful cross appeal over the High Court finding that the press release was published on an occasion of qualified privilege.
The €10 million award – made up of €9 million for general damage and €1 million for aggravated damages – was made in 2010 after a jury found Mr Kinsella was defamed in a company press release issued on July 10th, 2007.
The press release concerned an incident in Mozambique in May 2007, where a company board meeting was being held, when Mr Kinsella sleep-walked naked to the bedroom door of company secretary Deirdre Corcoran.
The press release referred to an “incident” and said Mr Kinsella was being asked to resign from the company’s audit committee.
An investigation by an independent solicitor on behalf of the company had found there was no conscious attempt on Mr Kinsella’s part to enter Ms Corcoran’s room and no improper motive in opening her door. Mr Kinsella was prone to sleep-walking.
Mr Kinsella sued the company and its chairman, Mr Carvill.