Judge tells jury in O’Brien defamation case to consider nine questions

The jury in the action by Denis O’Brien alleging he was defamed in articles published in the Sunday Business Post (SBP) will begin considering their verdict on Thursday.

The 11 jurors, eight men and three women, were instructed in the law by Mr Justice Bernard Barton on Wednesday after which he asked them to return to court at noon on Thursday to begin their deliberations.

Mr O’Brien is suing Post Publications Ltd, publisher of the SBP, over articles published over six pages in the newspaper of March 15th, 2015.

The articles named Mr O’Brien as among the 22 biggest borrowers from Irish banks in 2008.

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Their focus was a confidential PwC report given to the government in November 2008 which looked at the exposure of Ireland’s banks in 2008. Journalist Tom Lyons got a copy from a source in 2015 and shredded it shortly after the articles were published to protect the source. Mr O’Brien claims the articles, including articles headlined “The Gang of 22” wrongly meant he was among a “gang” of 22 borrowers who “wrecked the country” and that they defamed him and injured his reputation. He also alleges malicious publication and, in that context, is seeking punitive damages. The defendant denies the words mean what he alleges, denies defamation and malicious publication, and has pleaded “fair and reasonable publication on a matter of public interest”.

The jury has heard evidence from three witnesses – Mr O’Brien, journalist Tom Lyons and former SBP editor Ian Kehoe.

The jury was told they have to consider nine questions.

Those ask (1) whether the articles meant Mr O’Brien, as one of 22 borrowers, was among those borrowers most to blame for the destruction of the Irish banking system and the subsequent bailout; and (2) was a recipient of cheap and easy money which was in some way related to improper influence with bankers, politicians and civil servants.

They also ask (3) did the articles mean, as a result of what was said about Mr O’Brien’s borrowings, the PwC report was one which he wished to keep secret or top secret and had been suppressed and that (4) the story of Mr O’Brien’s borrowings and the amount thereof was telling and disturbing.

Question 5 and 6 ask whether the articles meant Mr O’Brien was “massively overstretched” and “faced huge financial pressure” in November 2008. If the jury answer Yes to either or both of those, they must consider was that defamatory.

If they answer No to the first six questions, that is the end of the case.

If they answer Yes to any of the six, they go on to question 7, which asks whether the SBP published the articles in good faith and in the course of, or for the purposes of, a discussion which was for the public benefit on a subject of public interest.

If they answer Yes, to question 7 they must decide whether the manner and extent of publication were, in all the circumstances of the case no more than reasonably sufficient and fair and reasonable.

If they find fair and reasonable publication, that is the end of the case.

If not, they go on to question 8 which asks them to assess damages in which context they will consider question 9, whether the defendant was motivated by malice in publishing the articles. If they find it was, they will assess punitive damages.

In his charge, the judge said, the trial was very important for both sides and the objective was to obtain a result fair to both sides.

If the jury get to the stage of awarding damages, any award should not be one that would punish the defendant so much the freedom of the press was put at risk, he said.

Mr O’Brien should be given such sum as would fairly and reasonably and proportionately compensate him for his injured feelings and the diminution in his standing among right thinking people as a result of the words complained of, he said.