A judge has told the publishers and authors of a book on the story behind the Kinahan gang that he was not happy with a sworn affidavit they had submitted in defamation proceedings against them.
Mr Justice Richard Humphreys told them on Wednesday that he would adjourn an application, seeking damages and orders directing it be taken off the bookshelves, so that they could provide the High Court with additional statements outlining their defence.
Dublin man Derek Cervi claims he has been defamed in the book titled The Cartel – the shocking true story of the rise of the Kinahan crime cartel and its deadly feud with the Hutch gang.
Mr Cervi, of Russell Avenue, East Wall, Dublin, has sued the publisher Penguin Random House Ireland Limited and the authors, journalists Owen Conlon and Stephen Breen, all of whom deny his claims.
Martin Hayden SC, counsel for Mr Cervi, told the court his client claimed he was referred to once in the book in a passage where it was wrongly stated he was arrested, and later released without charge, by gardaí in connection with a search of his mother’s home for weapons and cash.
Mr Hayden, who appeared with Kent Carty Solicitors, said Mr Cervi had averred in his grounding affidavit to the court that he had not been arrested at any stage by the gardaí, and claimed the book published earlier this year had wrongly linked him with criminality.
Mr Cervi claims he has never been involved in criminality and fears for his and his family’s safety as the book had brought him unwanted attention. As well as seeking damages he has asked the court for orders including an interlocutory injunction preventing further publishing and sales of the book.
He also seeks an order from the court directing correction of what he claims are defamatory statements and has asked the judge to direct that all unsold copies of the book be recalled.
The defendants oppose the injunction application and argue that orders sought can only be granted if there is no defence to the defamation allegation. They say there is full denial of liability on grounds including the full context of the publication does not bear out the defamatory meanings as alleged and that there are robust grounds for defending Mr Cervi’s claims at a full trial.
Mr Justice Humphreys, after considering submissions from lawyers for both sides, said he had issues about the contents of the sworn affidavit on the grounds it expressed beliefs rather than a means of knowledge of statements included in it.
The dispute between lawyers focused on a section of the affidavit where the defendants said they “understand that Mr Cervi was interviewed subsequent to the search referred to in the book” and which, they claimed, may be a relevant factor in their defence.
Another area of dispute was the defendants’ reliance on a defence of qualified privilege and reasonable publication on a matter of public interest, and where the authors say they relied in good faith on reliable information communicated to them.
Mr Hayden told the court Mr Cervi had not been contacted at all by gardaí in the hours after the search nor had he been arrested. He said that about 18 months after the search Mr Cervi had been asked by gardaí would he make a statement.
The judge said Mr Cervi’s lawyers could enter supplementary evidence if they so wished and adjourned the injunction application to a date in early October.