Naming Denis O’Brien in articles was not unfair, jury told

Former Sunday Business Post editor Ian Kehoe has denied it was unfair to publish articles in 2015 naming businessman Denis O’Brien as among the 22 biggest borrowers from Irish banks in 2008.

He was being cross-examined in Mr O’Brien’s action before a High Court jury alleging defamation in the articles published over six pages in the SBP on March 15th 2015. The focus of those was a report by Price WaterhouseCoopers (PwC) about the exposure of Ireland’s banks in 2008 which was given to the government in November 2008 but not made public.

Journalist Tom Lyons got the report from a source in 2015 and shredded it shortly after the articles were published to protect the source. Mr O’Brien claims the articles, written by Mr Lyons and others, wrongly meant he was among a “gang” of 22 borrowers who “wrecked the country” and they defamed him and injured his reputation.

The defendant, Post Publications Ltd, denies the words complained of mean what Mr O’Brien says, denies defamation and malicious publication, and has pleaded “fair and reasonable publication on a matter of public interest”.

Under cross-examination on Wednesday by Luán Ó Braonáin SC, for Mr O’Brien, Mr Kehoe agreed he had been involved in writing a “clearly incorrect” article in the SBP in 2013 which lead to the newspaper publishing a front page apology to Mr O’Brien and making a donation to a charity of his choice.

Mr Kehoe agreed the article incorrectly stated Mr O’Brien was being pursued by the Collector General of the Revenue Commissioners. He agreed there was no actual litigation about it and the SBP apology and donation were made following correspondence with Mr O’Brien’s lawyers.

‘Nothing new’

Mr Ó Braonáin put to him the March 2015 articles contained “nothing new” for reasons including the government appointed Nyberg commission had reported in March 2011 on the Irish banking crisis.

Mr Kehoe disagreed and said the 2015 articles concerned the confidential PwC 2008 report which looked at borrowing across all Irish banks in 2008. He agreed the Nyberg report referred to a high concentration of lending across a group of 25 borrowers.

Asked why the SBP articles referred to 22 “men”, Mr Kehoe said there were no women. He said there were 22 “exposures” listed, some involving brothers and putting “exposures” on the front of the newspaper “would make no sense to anyone”.

He accepted the Nyberg report did not name the 25 but said Professor Nyberg was constrained by what he could report. The SBP decided to name those identified in the PwC report “in the interests of transparency, accountability and democracy”, he said.

He agreed, if the SBP was going to do that, it must do it fairly. He said the SBP “faithfully reported” what was in the report, set out the position of all those named and stated Mr O’Brien had paid off all his debts to Anglo and was among the best borrowers of Bank of Ireland and AIB.

He agreed, before he was editor of the SBP, it published an article by another journalist in 2011 critical of the failure of the Nyberg report to name names and describing that report as “toothless and unsatisfying”.

Risk ratings

Mr Kehoe was also questioned about the 2015 articles’ treatment of risk ratings which PwC allocated, based on what the banks told it, to individual borrowers. The jury has been told a page of the report featured a colour-coded graph which gave a green, positive, risk rating to Mr O’Brien.

Mr Kehoe agreed Mr Lyons had said, during cross-examination, the copy of the report he got was in black and white. Mr Kehoe said the newspaper had “something better” than the banks positive 2008 estimation of Mr O’Brien’s capacity to repay his debts as it knew in 2015 he had paid off his debts and stated that. Mr Ó Braonáin said the problem was the articles emphasised the risk rating of those who were “bad” and referred to 22 men accumulating some €8.8 billion in land and development loans when PwC made clear Mr O’Brien had no exposure in land and development.

Mr Kehoe said his recollection was the PWC report said Mr O’Brien had significant property interests and “did not get into” whether he had land and development or not. Mr Ó Braonáin also put to Mr Kehoe, in order to be fair to people who are different, they may have to be treated differently.

Mr Kehoe said he believed Mr O’Brien was treated fairly in the articles. Earlier, when concluding his direct evidence, Mr Kehoe told his counsel Michael McDowell SC it was “simply incorrect and a lie” to suggest the 2015 articles set out to maliciously damage Mr O’Brien. The hearing continues on Thursday.